Manekben Rama Tandel And Anr vs The Collector Daman, Union ...
2023 Latest Caselaw 4728 Bom

2023:BHC-AS:13676-DB




                                                                        2727.22 WP.doc



                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
     Iresh
                                          CIVIL APPELLATE JURISDICTION
                                         WRIT PETITION NO. 2727 OF 2022
                 1. Manekbben Rama Tandel
                 Age. 72, Occ. Housewife,
                 R/o - House No. 8/260, Parkota
                 Sheri, Nani Daman, Daman - 396210


                 2. Dharmesh Sukkar Tandel,
                 Age. 44, Occ. NIL,
                 R/o. House No. 8/260, Parkota
                 Sheri, Nani Daman, Daman - 396210                         ....Petitioners
                         V/s.

                 1. The Collector,
                 Daman, Union territory of Dadra
                 & Nagar Haveli and Daman & Diu

                 2. Union territory of Dadra & Nagar
                 Haveli and Daman & Diu, through
                 its Administrator of Union territory
                 of Dadra & Nagar Haveli and Daman
                 and Diu.

                 3. Directorate of Medical Health Services,
                 Primary Health Centre, Fort Area, Moti
                 Daman 396 210, Union Territory of
                 Dadra & Nagar Haveli and Daman & Diu

                 4. Public Works Department, Daman,
                 Union Territory of Dadra & Nagar Haveli
                 and Daman & Diu                                           ....Respondents



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 Mr. T. D. Deshmukh along with Mr. H. D. Chavan and Mr. Sagar Kursija

 and Ms. S. S. Mohanty for the Petitioner.

 Mr. H. S. Venegaonkar along wiith Mr. Aayush Kedia for Respondent Nos.

 1 to 4.

                                      CORAM: R. D. DHANUKA &
                                                   GAURI GODSE, JJ.

RESERVED ON: 14TH MARCH 2023 FURTHER ARGUMENT ON: 20TH APRIL 2023 AND 27TH APRIL 2023 PRONOUNCED ON: 4TH MAY 2023

JUDGMENT: (PER: GAURI GODSE J)

1. Rule. Mr Venegaonkar waives service for Respondents. Rule is

made returnable forthwith. By consent, the petition is taken up for final

disposal.

2. This Petition challenges two separate preliminary notifications,

both dated 17th November 2021, issued under Section 11 of The Right to

Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013 ('Act of 2013') and two separate declarations

both dated 14th February 2022 under Section 19 of the Act of 2013. By

way of amendment, Petitioners challenged two separate Awards declared

under Section 23 of the Act of 2013, both dated 25 th April 2022. Both

these notifications and the Awards are affecting two separate areas of

Petitioner's property.

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CASE OF THE PETITIONERS:

3. Petitioners are the owners of the land bearing survey Nos. 8, 10/1,

11/2, 11/3 of village Kathiria, Daman, admeasuring 12917 square meters

and 4091 square meters ("said property") which are the subject matter of

the acquisition under the Act of 2013.

4. On 15th February 2019, a notification was issued under Section 4 of

the Act of 2013 for the preparation of a Social Impact Assessment ("SIA")

for the purpose of expansion of a government hospital, proposing to

acquire lands bearing survey nos. 19/1, 19/2, 19/5, 19/6, 19/7 and 19/8 of

village Kathiria, Nani Daman. The Petitioners are not concerned with

these properties. The said property was not mentioned in the said

notification dated 15th February 2019.

5. In the month of March 2019, the Petitioners received notice of

eviction for their hotel structure as the same was affected by the proposed

construction of a coastal road. Hence the Petitioners challenged the

action of the Respondents by filing Writ Petition No. 3886 of 2019. By

order dated 27th March 2019, interim protection was granted to the

Petitioners.

6. It is the case of the Petitioners that without any SIA report with

respect to the said property, two separate notifications under Section 11 of

the Act of 2013 were issued on 12 th September 2019, which included the

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said property for the first time to the extent of 12917 square meters and

4091 square meters for the purpose of expansion of government hospital

and nursing college hostel. On 5 th November 2019, the Petitioners

submitted objections to the said preliminary notifications. On 13 th

December 2019 report under Section 15 was submitted by Respondent

No. 1. On 6th May 2020, a notification under Section 19 was issued.

Petitioners received a notice dated 7 th October 2020 issued under Section

21.

7. Hence the Petitioners filed Writ Petition Stamp No. 94689 of 2020

for challenging notifications dated 12 th September 2019 issued under

Section 11, report dated 13th December 2019 submitted under Section 15

and declaration dated 6th May 2020 issued under Section 19 of the Act of

2013. In the said Writ Petition, a statement was made on behalf of

Respondents that acquisition proceedings in respect of the said property

are dropped, and fresh acquisition proceedings are initiated. Hence said

Writ Petition was disposed of as infructuous on 7 th January 2021.

8. Consent terms dated 4th May 2021 were filed in the earlier Writ

Petition No. 3886 of 2019, which was filed against an eviction notice for

the construction of a coastal road. It is the case of the Petitioners that

pursuant to the consent terms, the Petitioners were permitted to shift their

hotel structure to the backside. In view of the consent terms, Petitioners

had agreed to hand over their land for the purpose of the coastal road

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without any monetary consideration, as the Petitioners were allowed to

shift their hotel structure on the backside. Thus, the Petitioners handed

over 30 meter stretch without any monetary consideration.

9. On 17th November 2021, without any SIA report, two separate

notifications under Section 11 of the Act of 2013 were issued for acquiring

the said property for the purpose of a nursing college hostel of the

government hospital. There were two separate notifications issued under

Section 11 of the same date for an area admeasuring 12917 square

meters and for an area admeasuring 4091 square meters. Hence

Petitioners submitted objections on 13 th January 2022. On 14th February

2022, two separate declarations under Section 19 were issued. On 15 th

February 2022, a notice for possession was issued under Section 21.

Hence the Petitioners filed the present Petition challenging the

notifications under Section 11 as well as the declarations issued under

Section 19 of the Act of 2013. During the pendency of the Petition, two

separate Awards were declared on 25 th April 2022. Hence by way of

amendment, Petitioners also challenged the two separate Awards

declared on 25th April 2022.

SUBMISSIONS ON BEHALF OF PETITIONERS:

10. The learned counsel for the Petitioners submitted that in the

notification dated 15th February 2019 under Section 4, Petitioners' said

property was not included. Hence the Petitioners had filed objections on

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5th November 2019 to the aforesaid earlier notifications issued on 12 th

September 2019 under Section 11. It was the Petitioners' contention that

though suitable lands were available adjoining the government hospital,

including the government land being survey number 6/2, said property

was arbitrarily included in the said notifications. It is the Petitioners' case

that the said property has hundreds of coconut trees, and the land is not

contiguous and is located on the opposite side of the road. During the

pendency of the said Writ Petition Stamp No. 94689 of 2020, thereby

challenging the change in site and inclusion of the said property in the

notifications under Sections 11, 15 and 19, the Respondents had made a

statement that the acquisition with respect to the said property was

dropped and the fresh acquisition was initiated. Hence in view of the

statement made, the said Writ Petition was disposed of on 7 th January

2021, thereby granting liberty to the Petitioners to challenge the fresh

acquisition.

11. The Petitioners contended that a notice dated 24th November 2020

was issued for withdrawing acquisition proceedings. However, a perusal

of the said notice shows that only the SIA notification dated 15 th February

2019 was withdrawn, which never included the said property. There was

no separate notice issued for the withdrawal of the acquisition

proceedings initiated by issuing notice dated 12 th September 2019 under

Section 11 in respect of the said property.

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12. The learned counsel for the Petitioners submitted that the

Petitioners had raised specific objections that though there was

alternative land available adjacent to the government hospital, the said

property, which is not adjacent to the government hospital, was sought to

be acquired. It was the Petitioners' contention that they are running a

hotel on the said property, and the said property also has about 100

coconut trees.

13. Learned counsel for the Petitioners submitted that Sub-Section 3 of

Section 4 and Sub-Section 1 of Section 6 require that the SIA report

should be made available to the land owner. He further submitted that

under Sub-Section 3 of Section 11, the notification should contain a

summary of the SIA report so as to enable the landowners to raise

effective objections. However, neither the SIA report was published nor

did the notification under Section 11 contain any summary of the SIA

report. Thus, it was submitted on behalf of the Petitioners that the

acquisition process violated the principles of natural justice.

14. Learned counsel for the Petitioners submitted that Section 15 of

the Act of 2013, read with Rule 6 of the Rules of 2015 framed under the

Act of 2013, mandates that the objections raised by the landowners

should be considered and decided. He submitted that these objections

are akin to the objections that are required to be decided under Section

5A of the Land Acquisition Act 1894. Therefore, non-consideration of the

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objections raised by the Petitioners has also violated the principles of

natural justice.

15. Learned counsel further submitted that pursuant to the consent

terms, the Petitioners were permitted to shift their hotel structures to the

backside. In the present acquisition proceedings, the land where the hotel

structures were shifted on the backside is sought to be acquired. Learned

counsel submitted that in view of the consent terms, Petitioners had

agreed to hand over their land for the purpose of coastal Road without

any monetary consideration as the Petitioners were allowed to shift their

hotel structure on the backside. Thus, the Petitioners handed over 30

meter stretch without any monetary consideration.

16. Learned counsel for the Petitioners submitted that in the first round

of acquisition, survey number 19 was shown affected in the notification

under Section 4. However, in notifications issued under Sections 11 and

19, survey number 19 was deleted, and the said property was included

without any justifiable reasons. He submitted that there is no reason why

the lands adjacent to the government hospital, including government-

owned land, are not considered for the nursing hostel. He further

submitted that the SIA report is not provided to the Petitioners as is

required under Sections 4 and 6 of the Act of 2013. Learned counsel

submitted that a summary of the SIA report is conspicuously absent in the

notification under Section 11, which is a mandatory requirement. He thus

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submitted that the objection raised by the Petitioners is also decided

without assigning any reasons. Section 15 of the Act of 2013 provides

that a hearing is to be given to the landowners on the objections filed by

them. Thus, it was submitted that the action on the part of the

Respondents to acquire the said property is a clear case of malafide, as

the action of the Respondents defeats the consent terms which were filed

in Writ Petition No. 3886 of 2022.

17. It was also submitted that the said property is not contagious as

there is a road between the government hospital and the nursing college

hostel and the Petitioners' land proposed to be acquired. Thus, it was

submitted that the whole process of the present acquisition is illegal,

perverse and against the settled principles of law as the same is based on

non-application of mind, as can be seen from the report under Section 15

of the Act of 2013.

18. Learned counsel submitted that the report prepared by the learned

Collector under Section 15 is without assigning any reasons. He

submitted that Rule 6 of 2015 Rules framed under the Act of 2013

provides for giving a reasonable opportunity of hearing for deciding the

objections of interested parties. However, Respondent No. 2, without

giving any opportunity for hearing and without assigning any reasons, has

decided the objections filed by the Petitioners. Thus, the conduct of the

Respondents shows the malafide action and colourable exercise of

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power. Thus, the Petitioners submitted that notifications issued under

Section 11 and the declarations issued under Section 19 of the Act of

2013 as well as two separate Awards passed on 25 th April 2022, deserve

to be quashed and set aside.

CASE OF THE RESPONDENTS:

19. There is an Affidavit-in-Reply filed on behalf of Respondents

opposing the prayers in the Petition. The Respondents contended that the

Petitioners had encroached on the Government land and hence there was

no question of granting monetary compensation. Hence, the earlier Writ

Petition No. 3886 of 2019 was disposed of by filing consent terms. The

Petitioners stated that notification for the SIA was issued on 15 th February

2019 and the SIA meeting was held on 5 th March 2019 and all the

concerned land holders were intimated regarding the same. It was thus

contended that thereafter preliminary notification dated 12 th September

2019 was issued and published under Section 11. It was also contended

that another meeting of the SIA was convened on 24 th May 2021 after

issuing notice on 20th May 2021. The Respondents contended that on 3 rd

December 2019 the Petitioner was present before the Collector and

thereafter a report was issued on 13 th December 2019 under Section 15.

Thus, the objections of the Petitioners were disposed of on merits.

Notification under Section 19 dated 6th May 2020 was served on all the

parties having interest in the land and also uploaded on the official

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website. Thereafter notice dated 7 th October 2020 was issued under

Section 21 and was served on all the persons interested. It was

contended that it was also uploaded on the official website. The Affidavit-

in-Reply further referred to Notification dated 17 th November 2021 inviting

objections. Affidavit-in-Reply further referred to objections filed by the

Petitioners on 13th January 2022 and hearing given to the Petitioners on

18th January 2022. The Affidavit-in-Reply further stated that after following

due process of law, said property has been selected after proper

examination and SIA report as per Section 8 of the Act of 2013. Thus, the

prayers in the Writ Petition were opposed on the ground that the

objections raised by the Petitioners were vague and had no merits.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

20. Mr. Venegaonkar, learned counsel for the Respondents, submitted

that the proceedings were initiated after following the due process

provided under the Act of 2013, and at every stage, the Petitioners were

given a hearing. Learned counsel submitted that perusal of dates in a

chronological manner would show that all the procedures as prescribed

under the Act of 2013 are followed. Learned counsel invited our attention

on the following dates by placing on record a list of dates and events as

under:

15th February 2019: Notification under Section 4(3) of the Act of

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2013 was issued for the purpose of the SIA study.

13th December 2019: The Collector submitted a report under

Section 15 of the Act of 2013 for the acquisition of the land for the

purpose of the nursing hostel.

7th October 2020: Notification under Section 21 of the Act of 2013

was issued.

24th November 2020: Notification was issued for the purpose of

withdrawal of the land acquisition proceedings, which were initiated

by notification dated 15th February 2019.

14th December 2020: Notification under Section 4 was issued for

the purpose of an SIA study for the acquisition of 12917 square

meters of land.

11th January 2021: Notification under Section 4 was issued for the

SIA study for the acquisition of 4091 square meters of land.

4th May 2021: Writ Petition No. 3886 of 2019, filed by the

Petitioners for challenging the eviction notice issued to the

Petitioners, was disposed of in terms of the consent terms.

24th May 2021: A hearing was given on the objections filed by the

Petitioners. The Petitioner's son-in-law was present for the hearing,

being constituted attorney of the Petitioners. Hearing given to the

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Petitioners through their constituted attorney is part of the record.

17th November 2021: Preliminary notification under Section 11 of

the Act of 2013 was issued.

13th January 2022: Petitioners filed objections to notification under

Section 11.

17th January 2022: The learned Collector had scheduled a hearing

for Petitioners on the objections filed by them. However, an

adjournment was sought by the Petitioners, and hence, the same

was adjourned to 18th January 2022.

18th January 2022: Petitioner No. 2 appeared and was given a

hearing by the learned Collector.

25th January 2022: The Petitioners had filed Writ Petition No. 2271

of 2022 for challenging the acquisition proceedings at the stage of

notification under Section 15. However, the said Writ Petition was

not pursued on behalf of the Petitioners.

4th February 2022: A report under Section 15 was published after

considering the objections filed by the Petitioners for the

acquisition of 4091 square meters.

7th February 2022: After considering the objections filed by the

Petitioners, a report under Section 15 was published with regard to

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the acquisition of 12917 square meters of land.

14th February 2022: Two separate declarations under Section 19

were issued with respect to two separate areas, which are the

subject matter of acquisition.

15th February 2022: Notice indicating the hearing scheduled under

Section 21 before taking possession of the land was fixed on 22 nd

March 2022.

4th March 2022: Present Petition was filed for challenging two

separate notifications issued under Section 11 and two separate

declarations under Section 19.

22nd March 2022: Though the Petitioners were served with a notice

for the scheduled hearing, the Petitioners failed to appear. Hence,

the hearing was rescheduled on 24th March 2022.

24th March 2022: Petitioner No. 1 appeared and submitted a

letter to the learned Collector, thereby raising objections with

respect to the quantum of compensation.

10th May 2022: As the Petitioners refused to accept the amount of

compensation, the learned Collector filed a Reference under

Section 64 of the Act of 2013.

16th May 2022: After filing the Reference, possession of lands

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which were the subject matter of the acquisition was taken.

20th May 2022: The amount of compensation is deposited in the

Reference Court.

21. Thus, it was submitted by Mr. Venegaonkar that all the mandatory

provisions mentioned in Chapter IV of the Act of 2013 are followed.

Learned counsel further submitted that the SIA report was also provided

to the Petitioners, and thus the submissions made on behalf of the

Petitioners with respect to the same have no merit. The learned counsel

submitted that the allegations made by the Petitioners regarding not

following the due procedure are baseless and vague. Learned counsel

invited our attention to the provisions under Chapter IV of the Act of 2013

and submitted that the dates and events with respect to the present case

would show that all the procedures were followed in the acquisition of the

Petitioners' land after giving due opportunity of hearing at all the relevant

stages. He submitted that objections raised by the Petitioners are only in

the nature of suggestions. He, therefore, submitted that there is no valid

ground raised in the Petition for challenging the acquisition proceedings

with respect to the Petitioners' land. He thus submitted that the Writ

Petition has no merit and the same be rejected. Mr Venegaonkar, in

support of his submissions, relied upon the decision of this Court in the

case of Godrej & Boyce Manufacturing Co. Ltd Vs. State of Maharashtra,

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through the Government Pleader and Others1.

CLARIFICATIONS AND FURTHER ARGUMENTS:

22. We heard both parties at length. The arguments were concluded,

and the Petition was closed for Order. For clarification, on the aspect of

issuance of notification under Section 4 and publication of the SIA report

as contemplated under Section 6, the matter was listed for further

hearing. Mr Venegaonkar, on instructions submitted that with respect to

the said property, there was no notification published under Section 4, and

the SIA study report, as contemplated under Section 6, was also not

published. He, however, submitted that the summary of the SIA report

formed part of the notification under Section 8 of the Act of 2013. He thus

submitted that the Petitioners were aware of the contents of the SIA report

before filing objections and hearing given on the objections conducted

under Section 15.

23. Mr. Venagaonkar submitted that the Petitioners were given an

opportunity of hearing at every stage. He submitted that much water had

flown after the publication of the Award. He submitted that the contract is

also executed for the commencement of work. The acquisition is for a

project of public importance. Hence, any adverse order in this Petition will

delay the work of public importance. He submitted that the objections

raised by the Petitioners in this Petition are regarding technical lapses,

1 2023 SCC OnLine Bom 341

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and no prejudice is caused to the Petitioners due to non-publication of

notification under Section 4 and non-publication of the SIA report as

contemplated under Section 6. He submitted that even otherwise, in the

objections dated 24th March 2022, the Petitioners have only raised a

grievance regarding the quantum of compensation. Hence, the objections

of the Petitioners can be taken care of at the time of deciding the

enhancement, if any, of the quantum of the compensation amount. He,

therefore, submitted that no interference is warranted in this Petition.

24. Mr. Deshmukh submitted that the publication of the notification

under Section 4 and the publication of the SIA study report as

contemplated under Section 6 are not empty formalities. He submitted

that no effective objections can be raised in the absence of an SIA study

report. He submitted that even the notification under Section 11 did not

contain the summary of the SIA report. He further submitted that the

objections filed by the Petitioners are rejected with a one-line Order. He

submitted that publication of the SIA report is a mandatory requirement

under the Act of 2013. He submitted that exemption from undertaking an

SIA study is provided under Section 9 only when the urgency clause is

invoked. Mr Deshmukh thus submitted that the publication of the

notification under Section 4 and the report under Section 6 are not mere

technical compliances. He submitted that non-compliance with the

mandatory procedures under the Act of 2013 vitiates the entire acquisition

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proceedings. He submitted that in the objections dated 24 th March 2022,

the Petitioners have also intimated about the pendency of the present

Petition and have reserved their right to raise objections. Hence the Writ

Petition be allowed, and the impugned notifications and Awards be

quashed and set aside.

CONSIDERATION OF SUBMISSIONS AND CONCLUSIONS:

25. We have considered the submissions made on behalf of both

parties. The submissions made on behalf of the Petitioners are twofold.

Firstly, regarding the suitability of the land proposed for acquisition and,

secondly, regarding the hardships and prejudices caused to the

Petitioners.

26. On perusal of the record, it is clear that earlier, there was an

acquisition of the Petitioner's land for a coastal road. Pursuant to the

consent terms filed in the writ petition challenging the eviction notice

issued to the Petitioners for coastal road, consent terms were filed. As per

the consent terms, the Petitioners were permitted to shift their hotel

structure which was affected by the coastal road, to the backside. In view

of the consent terms, the Petitioners handed over 30 meter stretch of their

property without any monetary consideration. The Respondents have not

disputed the Petitioner's contention that the land where the Petitioners

were allowed to shift their hotel structure is now affected by the

acquisition proceedings for the purpose of a proposed nursing college

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hostel.

27. The Respondents have contended that due opportunity of hearing

was given to the Petitioners at the relevant stages, and all the procedures

under the Act of 2013 were followed. However, admittedly notification

under Section 4 was not published, and the SIA report was also not

published as contemplated under Section 6. A perusal of the notification

under Section 11 of the Act of 2013 shows that it does not contain the

summary of the SIA report.

28. A perusal of Sub-Section (1) of Section 4 shows that publication of

a notification for a preliminary investigation for determination of the social

impact and public purpose, as contemplated under Chapter II of the Act of

2013, is not a mere empty formality or a technical requirement. Sub-

Section (2) of Section 4 provides that the notification issued under Sub-

Section (1) for commencement of the SIA study is required to be made

available in the local language to the concerned Panchayat, Municipality

or Municipal Corporation as well as in the offices of the District Collector,

Sub-Divisional Magistrate and the Tehsil and shall also be published in

the affected areas in such a manner as may be prescribed and also

uploaded on the website of the Appropriate Government. Sub-Section (5)

of Section 4 provides that while undertaking an SIA study, various aspects

are required to be taken into consideration, which includes the livelihood

of affected families, public and community properties etc. Thereafter

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Section 5 contemplates a public hearing for the SIA study. Section 5

provides for a mandatory requirement for giving a public hearing at the

affected area after giving adequate publicity about the date, time and

venue for the public hearing to ascertain the views of the affected families

to be recorded and included in the SIA study report.

29. Though it is argued on behalf of the Respondents that the

opportunity of hearing was given to the Petitioner at every stage, nothing

is produced on record to show that notice was published as required

under Section 4 before the public hearing as contemplated under Section

5 was conducted. As per the list of dates and events submitted by Mr

Venegaonkar after the notification dated 24 th November 2020, thereby

withdrawing the earlier notification under Section 4, two notifications

dated 14th December 2020 and 11th January 2021 were issued, and SIA

hearing was conducted on 24th May 2021. However, when the matter was

listed for further hearing for the purpose of clarifications regarding the

issuance and publication of notification under Section 4 and publication of

the SIA report under Section 6 regarding the said property, Mr.

Venegaonkar, on instructions, admitted that no such notifications and SIA

report were published.

30. Section 6 provides that the SIA report and the social impact

management plan referred to in Sub-Section (6) of Section 4 are required

to be prepared and made available in the local language to the concerned

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Panchayat, Municipality or Municipal Corporation and the concerned

Government offices and shall also be published in the affected areas and

uploaded on the website of the Appropriate Government.

31. Section 7 provides for appraisal of the SIA report by an expert

group. Thereafter Section 8 provides for the examination of proposals for

land acquisition and SIA report by the Appropriate Government. Section

11 provides for the publication of preliminary notification and the powers

of the officers thereupon. Sub-Section (3) of Section 11 provides that the

notification under Sub-Section (1) of Section 11 shall contain a statement

on the nature of the public purpose involved and a summary of the SIA

report. Thereafter, Section 12 provides for a preliminary survey of land

and the power of officers to carry out the survey. Section 14 provides that

if preliminary notification under Section 11 is not issued within 12 months

from the date of appraisal of the SIA study report submitted by the expert

group under Section 7, then the such report shall be deemed to have

lapsed, and a fresh SIA study is required to be undertaken.

32. Section 15 provides for a hearing of the objections submitted by

interested persons. Sub-Section (2) of Section 15 provides that objection

under Sub-Section (1) shall be made to the Collector, and the Collector

would give the objector an opportunity of being heard and after hearing of

such objections and after making such further inquiry, if necessary, make

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a report in respect of the land which has been notified for acquisition.

33. In the present case, the notification under Section 4 for conducting

the SIA study and SIA report as contemplated under Section 6 of the Act

of 2013 regarding the said property is admittedly not published. Though

the Affidavit-in-Reply on behalf of the Respondents refers to a notification

under Section 4(1), admittedly, the said notification was not in respect of

the present acquisition proceedings. Mr Venegaonkar has placed on

record a report under Section 8 and submitted that the said report

contained a summary of the SIA report. Thus, he submitted that the

Petitioners were aware of the contents of the SIA report before they filed

objections under Section 15. He further submitted that Petitioners were

given a hearing on the objections filed under Section 15. Thus, according

to him, in such circumstances, non-publication of Section 4(1) notification

and non-publication of the SIA report is a technical lapse, and the same

will not vitiate the entire acquisition proceedings.

34. We have perused the copy of the report under Section 8 placed on

record at the time of further arguments. The said report does not contain

summary of the SIA report. It only contains the reason for land acquisition

and a brief reference to the observations and recommendations made by

Appraisal Committee. In our view, the procedures contemplated from the

stage of Section 4 are not empty formalities. Non-compliance with the

procedures prescribed prior to the stage of Section 15 will make the

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submission of objections by interested parties and hearing on such

objections meaningless.

35. Thus, there is a substance in the submissions made by Mr

Deshmukh that the acquisition proceedings are vitiated due to non-

compliance with the necessary provisions of the Act of 2013. The

objections raised by the Petitioners are twofold. Firstly, regarding the

hardships and prejudices caused to the Petitioners. Secondly, on the

suitability of the land proposed to be acquired. Considering the exhaustive

procedure prescribed for the SIA study contemplated under the Act of

2013, the nature of objections filed by the Petitioners relates to the

subjects for consideration in the SIA study as contemplated under Sub-

Sections (4) and (5) of Section 4. On perusal of the objections raised by

the Petitioners and the reasons assigned by the Collector for rejection of

the objections as recorded in the report under Section 15(2), we find

substance in the arguments made by Mr Deshmukh that the objections

raised by the Petitioners are not taken into consideration.

36. Mr Venegaonkar pointed out that the hearing for the SIA study was

conducted on 24th May 2021, and the Petitioner's son-in-law remained

present during the hearing before the learned Collector. He pointed out

that after the publication of the notification under Section 11, Petitioners

were given a hearing on 18 th January 2022. Thereafter a report was

submitted under Section 15 on 4th February 2022. It is necessary to

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mention here that on 7th January 2021, during the hearing of Writ Petition

Stamp No. 94689 of 2020 (filed for challenging the earlier notifications

under Sections 11, report under Section 15 and declaration under 19

issued regarding the said property), the Respondents had made a

statement that acquisition proceedings with respect to said property was

dropped and fresh acquisition proceedings were initiated. A perusal of the

notification dated 24th November 2020 shows that only the notification

dated 15th February 2019 under Section 4 is withdrawn. It is pertinent to

note that admittedly this notification dated 15 th February 2019 did not

mention the said property, and this notification did not pertain to the

present acquisition proceedings.

37. Thus, as per the statement made on 7th January 2021, if acquisition

proceedings in respect of the said property were withdrawn and fresh

acquisition proceedings were initiated, the same was required to be

initiated from the stage of Section 4 by withdrawing all the earlier

notifications. However, the Respondents have not done so and have

bypassed the mandatory stage for preparation of the SIA as contemplated

under Section 4 and publication of the SIA report as contemplated under

Section 6. A plain reading of Section 15 shows that the purpose of

hearing objections is to consider the objections filed by interested persons

based on Section 11 notification. Section 11 mandates that the

notification shall contain summary of SIA report. Section 15 reads as

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under:

"15. Hearing of objections.--(1) Any person interested in any land which

has been notified under sub-section (1) of Section 11, as being required

or likely to be required for a public purpose, may within sixty days from

the date of the publication of the preliminary notification, object to--

(a) the area and suitability of land proposed to be acquired;

(b) justification offered for public purpose;

(c) the findings of the Social Impact Assessment report.

(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 an

Advocate 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 sub-section (1) of

Section 11, 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 along with a separate report giving therein the

approximate cost of land acquisition, particulars as to the number of

affected families likely to be resettled, for the decision of that

Government.

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(3) The decision of the appropriate Government on the objections made

under sub-section (2) shall be final."

emphasis applied

38. A perusal of Section 11 shows that the notification should contain a

summary of the SIA report. Publication of Section 11 notification precedes

the provisions for the SIA study. As per Section 9, the only exception for

the exemption from social impact assessment is the invocation of the

urgency clause under Section 40. In the present case, there is no such

urgency clause invoked. Thus, the procedure for acquisition is required to

be initiated from the stage of publication of notification under Section 4.

39. The learned counsel for the Respondents has relied upon the

decision of this Court in the case of Godrej & Boyce Manufacturing Co.

Ltd. The issue with respect to any irregularities in the procedure followed

by the concerned authorities in acquiring the land for the infrastructural

project is dealt with in the said case. This Court was dealing with the

irregularities, if any, in following the second part of Section 25 of the Act of

2013. This Court has taken the view that in the case of procedural

difficulties, if any, the same would, at the most, affect the quantum of

compensation and not the validity of acquisition. The observations made

by this Court, in the case of Godrej Boyce, are in the context of the facts

of that case where the Bullet Train Project is an Infrastructural and Public

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Project of national importance. Thus, the principles laid down by this

Court in the case of Godrej Boyce are not applicable to the facts of the

present case.

40. Mr Deshmukh has relied upon the decisions of the Hon'ble

Supreme Court in the case of Chairman, Indore Vikas Pradhikaran Vs

Pure Industrial Coke and Chemical Ltd.2, Gojer Brothers Pvt. Ltd. Vs

State of West Bengal3 and Hindustan Petroleum Corporation Ltd Vs

Darius Shapur Chenai 4.

41. The Hon'ble Supreme Court, in the case of Chairman, Indore Vikas

Pradhikaran, was dealing with the provisions of the Madhya Pradesh

Nagar Tatha Gram Nivesh Adhiniyam concerning the compulsory

acquisition of land required for the purpose connected with the matters in

the said Act. Mr Deshmukh has relied upon paragraphs 56 to 58 of the

said decision, which read as under:

"56. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law.

57. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain

2 (2007) 8 SCC 705 3 (2013) 16 SCC 660 4 (2005) 7 SCC 627

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regulation in a statute or statutory rules. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right to property of the owner of such land. Restrictions are made in larger public interest. Such restrictions, indisputably must be reasonable ones. (See Balram Kumawat v. Union of India [(2003) 7 SCC 628] ; Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd. [(2004) 1 SCC 391] and Union of India v. West Coast Paper Mills Ltd. [(2004) 2 SCC 747] ) The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation.

58. Expropriatory legislation, as is well-known, must be given a strict construction."

42. The Hon'ble Supreme Court, in the case of Gojer Brothers Pvt.

Ltd., was dealing with the challenge to the acquisition proceedings on the

ground of non-consideration of objections of the land owner and scope of

Section 5-A of the Land Acquisition Act 1894, regarding hearing of

objections. The Hon'ble Supreme Court, after referring to the catena of

Judgments on the scope of Section 5-A, has held in paragraphs 20 and

21 as under:

"20. If the report prepared by the Land Acquisition Collector is scrutinised in the light of the principles laid down in the aforementioned judgments, we do not find any difficulty in holding that the learned Single Judge and the Division Bench of the High Court committed serious error by approving the acquisition proceedings ignoring that the report was prepared in clear violation of mandate of Section 5-A and the State Government mechanically accepted the report leading to the issue of declaration issued under Section 6(1). In

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the original and supplementary objections filed by it, the appellant had claimed that the entire exercise of acquisition was vitiated due to mala fides and colourable exercise of power. The history of litigation between the parties was also cited by the appellant to substantiate its plea that the acquisition proceedings were initiated only after the management of the School lost legal battle up to this Court. It was also pleaded that the acquisition was meant to bypass the direction given by this Court to the management of the School to hand over the possession of the School. Unfortunately, the Land Acquisition Collector did not deal with any of the objections and summarily rejected the same as if compliance with Section 5-A(2) was an empty formality. The State Government also did not apply mind and mechanically approved the one-line recommendation made by the Land Acquisition Collector.

21. In our view, non-consideration of the objections filed under Section 5-A(1) has resulted in denial of effective opportunity of hearing to the appellant. The manner in which the Joint Secretary to the Government approved the recommendation made by the Land Acquisition Collector favouring acquisition of the property is reflective of total non- application of mind by the competent authority to the recommendation made by the Land Acquisition Collector and the report prepared by him."

emphasis applied

43. The Hon'ble Supreme Court, in the case of Hindustan Petroleum

Corporation Ltd, has also taken a similar view on the scope of Section 5-A

of the Land Acquisition Act 1894 and held in paragraphs 8, 9, 28 and 29

as under:

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"8. The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also to the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non-compliance or substantial non-compliance with the provisions of Section 5-A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision-making process itself is in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well-known principles viz. illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner.

9. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5- A of the Act confers a valuable important right and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right.

28. Although assignment of reasons is the part of principles of natural justice, necessity thereof may be taken away by a statute either expressly or by necessary implication. A declaration contained in a notification issued under Section 6 of the Act need not contain any reason but such a notification must precede the decision of the

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appropriate Government. When a decision is required to be taken after giving an opportunity of hearing to a person who may suffer civil or evil consequences by reason thereof, the same would mean an effective hearing.

29. The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharma [(1966) 3 SCR 557 : AIR 1966 SC 1593] observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand v. State of Rajasthan [(1967) 1 SCR 120 : AIR 1967 SC 1074] and CCE v. Orient Fabrics (P) Ltd. [(2004) 1 SCC 597] ] There cannot, therefore, be any doubt that in a case of this nature due application of mind on the part of the statutory authority was imperative."

emphasis applied

44. Mr Venegaonkar has relied upon the decision of the Hon'ble

Supreme Court in the case of Ramniklal Bhutta Vs State of Maharashtra 5,

and submitted that the Courts have to weigh the public interest vis-à-vis

the private interest while exercising powers under Article 226 of the

Constitution of India. He submitted that even if this Court find that the

acquisition is vitiated on account of non-compliance with any statutory

requirement, quashing of the acquisition proceedings is not the only

remedy and that the Petitioners can be adequately compensated for the

damages or loss.

45. In the present case, the Petitioners have raised objections

5 (1997) SCC 134

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regarding procedural lapses committed by the Respondents and have

also challenged the acquisition proceedings on the ground of arbitrariness

by giving specific and cogent reasons. In our view, the powers of the

Court under Article 226 of the Constitution of India are discretionary, and

the Court can exercise the discretionary power in view of the fact that it

can be exercised in furtherance of the interests of justice. It is always

open to this Court to quash and set aside the acquisition proceedings on

the ground that the acquisition was vitiated on account of non-compliance

with mandatory requirements contemplated under the Act of 2013. The

procedural requirements contemplated under Chapter II of the Act of 2013

are exhaustive in nature and are contemplated with a specific purpose,

which has a direct bearing on the further procedure under Sections 11 to

15 of Chapter IV. Hence, the principles laid down by the Hon'ble Supreme

Court in the case of Ramniklal Bhutta are not applicable to the facts of

the present case.

46. We have already observed that the objections raised by the

Petitioners were related to the subjects of consideration prescribed under

Section 4 for the SIA study. Thus, the objections of the Petitioners would

have been a matter of consideration in the SIA study. A perusal of the

record shows that the procedure for the SIA study adopted by the

Respondents is not in compliance with the mandatory requirements

prescribed under the relevant provisions of the Act of 2013. There is no

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explanation given by Mr Venegaonkar on behalf of the Respondents for

the non-publication of notification under Section 4 and non-publication of

the SIA report under Section 6. It is contented by the Respondents that no

prejudice is caused to the Petitioners due to non-publication of notification

under Section 4 and non-publication of the SIA report under Section 6 as

the Petitioners were aware of the summary of the SIA report, as the report

under Section 8 contained the summary of the SIA report. There is no

merit in this submission for an obvious reason. A perusal of the report

under Section 8 shows that it does not contain any summary of the SIA

report. Even otherwise, any summary of the SIA report, if any, in the

report under Section 8 cannot be termed as due compliance with the

mandatory requirements of publication of the notification under Section 4

and publication of the SIA report as contemplated under Section 6.

47. The letter dated 9th December 2021 is relied upon by Mr.

Venegaonkar in support of his submission that the contract is already

executed for the commencement of work and the acquisition being for a

project of public importance any adverse order in this Petition will delay

the work of public importance. A perusal of the said letter and its date of

issuance shows that much before giving the so-called hearing on 18 th

January 2022, under Section 15, the Respondents had already awarded

the work contract. Such hurried action on the part of Respondents to

award the contract even before completing the acquisition proceedings

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shows that the public hearing and consideration of objections filed by the

Petitioners was done only as an eye wash to show that statutory

procedures were followed. The Respondents never intended to effectively

follow the statutory procedures for completing the acquisition proceedings

as contemplated under the Act of 2013. Thus, in the facts of the present

case, the principles laid down by the Hon'ble Supreme Court in the cases

of Chairman, Indore Vikas Pradhikaran, Gojer Brothers Pvt. Ltd. and

Hindustan Petroleum Corporation Ltd., squarely apply to the facts of the

present case.

48. At this stage, we find it necessary to refer to the well-established

principle that if a statute requires a thing to be done in a particular

manner, it should be done in that manner or not at all, Other methods of

performance are necessarily forbidden. This principle squarely applies to

the facts of the present case. This doctrine is applied in various cases

commencing from Taylor v. Taylor6 , Nazir Ahmad v. King Emperor 7, A.R.

Antulay v. Ramdas Sriniwas Nayak 8, upto Municipal Corpn. of Greater

Mumbai v. Abhilash Lal 9.

49. For the reasons recorded above, it is clear that the Respondents

have failed to follow the mandatory requirements for the acquisition of the

6 (1876) 1 Ch D 426 7 1936 SCC OnLine PC 41 8 (1984) 2 SCC 500 9 (2020) 13 SCC 234

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said property, as contemplated under the various provisions of the Act of

2013, which has vitiated the entire acquisition proceedings. The aforesaid

facts and circumstances of the case also show that there is violation of

the principles of natural justice. In a case of compulsory acquisition where

the Petitioners are deprived of their valuable property, they are entitled to

the opportunity of due hearing as contemplated under the various

provisions of the Act of 2013. The Act of 2013 is a complete code in itself.

Therefore, the acquisition process begins from the stage of publication of

Section 4 notification. Sections 4 and 6 show that public participation, as

well as the participation of local bodies, is expected before the

appropriate Government takes a decision for the acquisition of a particular

land. The stage under Sections 7 and 8 is also crucial, where a

Government is expected to apply mind if the acquisition is required after

taking into consideration the SIA report. Non-compliance with the

mandatory procedures prior to the stage of the decision of the

Government to acquire a particular land would vitiate the entire

acquisition process. The object of the mandatory procedures prescribed

under the provisions of the Act of 2013 ensures that the property of a

citizen is not taken away without proper inquiry. There are various

safeguards provided at various stages. Transparency is expected at every

stage.

50. In the present case, the very process of preparation of the SIA

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report is illegal, and the very object of Sections 4 and 6 is defeated. Public

at large was not put to notice about the SIA study and the SIA report.

Thus, the process of filing objections and the opportunity of giving a

hearing was rendered meaningless. Thus, in our view, this is a fit case to

exercise our discretionary powers under Article 226 of the Constitution of

India. Thus, we are inclined to accept the submissions made on behalf of

the Petitioners.

51. Hence, we pass the following order.

(I) Writ Petition is allowed in terms of prayer (b) and (b)(i), which

reads thus:

(b) By grant of appropriate writ, order or direction, this

Hon'ble Court may be pleased to quash and set aside

following notifications -

a. Preliminary Notification No. 3/56/2019/LND-ACQ/2018-

19/5417 dated 17.11.2021 (Under Section 11 of the Act).

b. Preliminary Notification No. 3/56/2019/LND-ACQ/2018-

19/5419 dated 17.11.2021 (Under Section 11 of the Act).

c. Declaration dated 14.02.2022 bearing No. 3/93/LND-

ACQ/2020-21/927 (under Section 19 of the Act).

d. Declaration dated 14.02.2022 bearing No. 3/93/LND-

ACQ/2020-21/928.

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and further be pleased to quash and set aside entire land

acquisition proceedings so undertaken subsequent to

these notification;

(b)(i) This Hon'ble Court may kindly be pleased to quash

and set-aside impugned award bearing no. 3/93/LND-

ACQ/2020-21/1917 and award bearing no. 3/93/LND-

ACQ/2020-21/1918 both dated 25/04/2022 issued by

Respondent.

(II) Respondents are at liberty to adopt appropriate proceedings for the

purpose of acquiring the said property as reflected in the impugned

Awards by following due procedure of law under the Act of 2013.

(III) Respondents will be at liberty to file appropriate Application for

withdrawal of the amount which is deposited before the Competent

Authority.

(IV) Rule is made absolute in the above terms. There will be no order

as to costs.

  (GAURI GODSE, J.)                                  (R. D. DHANUKA, J.)