Bombay High Court
Gustavo Renato De Cruz Pinto vs State Of Goa And Ors. on 16 November, 1987
Equivalent citations: 1988(2)BOMCR553
JUDGMENT G.D. Kamat, J.
1. The validity of the land acquisition proceedings No. RD/LON/190/78 whereby the land situated along the beach at Miramar, Panaji, Goa, bearing Survey P.T. Sheet No. 117/3, acquired from the petitioner and others, is challenged in this petition. The land was notified for acquisition for the public purpose of construction of a building for Food Craft Institute. But however, subsequently, the land acquired is being used wholly for another purpose, namely, the construction of a Tourist Complex known as "Yatri Niwas".
2. The challenge of the petitioner is that the Government having found the site not suitable for the construction of the building for Food Craft Institute and having finally constructed building for that Institute at Porvorim, Bardez, Goa there had been no application of mind under sections 4 and 6 of the Land Acquisition Act. It is urged by Shri. Dias, learned Counsel for the petitioners that, once there is no application of mind and no nexus established vis-a-vis the satisfaction of the need of the public purpose Goa the land sought to be acquired, the whole exercise becomes a colourable one and, therefore, the acquisition is void ab initio. The Second shade of the same argument, as contended by Shri Dias, is that once there is no satisfaction and the power used is colourable, then that acquisition would amount to a fraud on the owners of the property and once that happens the Government will be a mere trespasser on the land thus acquired and, in the same vein, it is further urged that such acquisition will also be vitiated on the ground of legal mala fides and therefore, the land must revert to the owner.
3. The facts in this case are not in dispute and they could be at once stated. The Government issued Notification under section 4 of the Land Acquisition Act, 1894, dated 18th November, 1978, and duly published in Government Gazette, dated 30th November, 1978, reciting that an area of 5820 square metres in intended for public purpose for the construction of a building for Food Craft Institute. A declaration under section 6, dated 18th June, 1979, was published in the Government Gazette dated 28th June, 1979, but however, this time the declaration related to 5660 square metres. An award was made on 22nd March, 1980, and as the Land Acquisition authority could not decide the matter of the payment of compensation, on account of the claim put by respondents Nos. 3 to 6, he referred the matter under section 30 of the Act, to the District Court for apportionment of the compensation. The possession of the land was taken under section 16 on 2nd July, 1980.
On 15th January, 1981, the Chairman of the Indian Institutes of Architecture, Goa Centre, made a letter to the Government, complaining about the ill-advisability of the location of a project of high rise building for Food Craft Institute at the concerned site immediately abutting the sea and river front. There was a meeting of the Senior Architects. Town Planner and other Authorities concerned, somewhere on 28th February, 1981, and the question of whether or not to locate the project of this nature at that site was taken up. In the meantime, a tender notice dated 27th November, 1981, got published on 4th December, 1981, inviting tenders for construction of the building but however, on account of final decision whether or not to locate such building at the acquired site not being reached, no tenderer was awarded the contract. In the meantime, an exercise of choosing an alternate site was taken. At some stage, the Principal of Food Craft Institute was directed to find out the merits and demerits of the present site as also some site located at Dona Paula but however, finally on 2nd June, 1982, preference was given to the site at Porvorim out of 87,750 square metres of land already ear marked for the institutional Complexes. An area of 15,000 squares metres was allocated as a site for locating the building for the institute. A tender notice was issued on 2nd July, 1984, and the building for the Food Craft Institute is being constructed at Porvorim to be completed on or before 31st December, 1987. It appears that, in the meantime, on 4th March, 1987, on the recommendation of Planning and Development Authority the Government thought of locating a Tourist Complex known as "Yatri Niwas" at Miramar, Panaji in the land earlier acquired from the petitioners and others and the work of construction of "Yatri Niwas" commenced some time on 4th April, 1987.
According to the petitioner, he was unaware that any building for Food Craft Institute was being constructed at Porvorim or that the site acquired from him by virtue of the award dated 22nd March, 1980, was being used for another purpose, namely, construction of "Yatri Niwas" and he became aware of the same for the first time only on reading a newspaper called 'Herald'. In the issue of 'Herald' dated 25th May, 1987, a notice was published inviting public for the foundation stone laying ceremony of "Yatri Niwas", issued by the Director, General of Tourism, Government of India, and Director, Tourism, Government of Goa, Daman and Diu. This notice alerted the petitioner to make various enquiries and on coming to know the developments that had taken place which are already rejected above about the change of public purpose that landed the petitioner in this Court to challenge the acquisition proceedings.
4. Having regard to the facts already mentioned and facts supplemented from the affidavit-in reply filed by Shri T.J. Faleire, Under Secretary (Tourism), Government of Goa, Daman and Diu, according to Shri Dias, a clear case of non-application of mind emerges when Notification under section 4 and the Declaration under section 6 of the Land Acquisition Act had been made at the relevant time. In sofar as the facts averred by Shri T.J. Faleire in his affidavit are concerned, it may be seen having regard to paragraphs 7, 8 and 9 that details are being given as to how once the Chairman of Indian Institutes of Architecture, Goa Centre, by his petition addressed to the Chief Minister on 15th January, 1981, complained about the setting up of the building of the Food Craft Institute would spoil the aesthetic beauty and environment of the area, the authorities concerned including the Officer of the Chief Town Planner wavered in the matter of location of the project of the building of the Food Craft Insitute. The Counsel is equally vehement in pointing out that having thus wavered in the matter of the site already acquired, the Government further wavered in the matter of locating that project at Dona Paula and its suitability also at Porvorim. He then next mentions that even going by the so-called objections as to how the said project was said to be against the aesthetic beauty and environment of the area, all that is said in support thereof is that some sizeable number of trees are required to be cut. It is, therefore, urged that this was a trifling matter and even if some trees were liable to be cut, that by itself, could not be the reason in the matter of making the Government waver so much. He also urged that the fact that the present complex "Yatri Niwas" sought to be constructed having low profile nevertheless requires cutting of at least some trees if not more, does lend support to his connection that when the Government issued the Notification under section 4 and made the Declaration under section 6 there could not have been application of mind and whatever application and satisfaction is held out in the Notification and the Declaration was only feeble and fragile and, therefore, there was no satisfaction as required by the mandate of section 6 and once there is no application of mind vis-a-vis the public purpose qua the site actually sought to be acquired, the whole proceedings are void ab initio. Even when the land is taken pursuant to the award there can be no objection for making the order for re-conveyance of the property. He equally urged with vehemence that when the Government enters upon a property pursuant to a colourable exercise of power then its position can be no better than a trespasser and the petitioner is entitled to get the order quashing the proceedings and entitling him to re-conveyance.
5. According to him, having regard to the facts of this case, at no stage earlier when the actual proceedings started with the issuance of Notification under section 4 and Declaration under section 6, the petitioner had any inkling that the land was not needed for the professed public purpose and, obviously, he could never challenge the same that is how the petitioner meekly submitted the submitted which culminated in the award pursuant to which possession was allowed to be taken on 2nd July, 1980. Shri Dias further mentions that were it not for the invitation published for laying the foundation stone of "Yatri Niwas" on 20th May, 1987, the petitioner would not have known that the professed public project had been located elsewhere at Provorim and a different purpose is sought to be established at the site of the petitioner which was acquired in the year 1980. Mr. Dias mentions all this to show that the petitioner has now come to realise that the Government has played the fraud or that there was no application of mind in the matter of acquisition proceedings in the year 1979-1980 based on subsequent facts and, therefore, he is entitled to challenge the proceedings even as late as 1987 and when succeeds in showing the challenges, the petitioner be restored back the land from which he was divested on 2nd July, 1980.
6. Mr. Dias, Counsel for the petitioner, however, says that mere delay in execution of a professed public purpose is no ground for granting relief to a petitioner who comes before a Court and whose land has been already acquired. For one reason or the other it is always open for the Government Authorities to locate the purpose which it had in mind at the time of the Declaration and mere delay cannot give ground for the owner of the land to get it back. But here, according to him, this is a gross case where having regard to the facts, no building for Institute could have been feasible at the land acquired from the petitioner and others and therefore, there was no nexus established between the need and satisfaction of the public purpose qua the land.
7. That the petitioner can yet challenge the whole proceedings or the validity of the proceedings at this stage, Mr. Dia upon several cases.
The first in the line is the authority of Valjibhai Muljibhai Sonaji and another, Ashra Textile Works and others v. The State of Bombay and others, . According to him, this decision lays down where the power used by the Government is colourable exercise of power for the purpose of acquiring a land with the declaration as to the public purpose, although such a declaration is otherwise final, the proceedings are bad on the ground of its being done by the colourable exercise of power. In fact, what is reiterated in this case was what was laid down earlier in the decision of Somawanti and others, Om Prakash and another and Atma Ram Chadha and another v. The State of Punjab and others, . It is laid down that a declaration as to the public purpose, of acquisition of land made by the Government is final except where it is colourable exercise of power.
In the decision of Land Acquisition Collector and another v. Durga Pada Mukherjee and others, it has been laid down that a declaration made under section 6 and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose but however, to this rule there is only one exception, namely, that a declaration can be challenged on the ground of mala fides or colourable exercise of power. It also further lays down that the onus lies on the owner of the land whose land is acquired to displace the presumption spoken to under sub-section (3) of section 6 and no doubt it is heavy but once the presumption is displaced then the onus shifts on the Government and it is then for the Government to satisfy about the bona fides of the acquisition. Mr. Dias heavily relies upon this Authority, more particularly paragraph 6 of this Report, to show that having regard to the facts pleaded and the various averments made by Shri Faleiro on behalf of the Government, it is a clear case where, at no stage, the Government had applied its mind and satisfied itself as to the need to establish the professed public purpose at the site chosen and, therefore, the petitioner has amply displaced the presumption under the law and he further mentions that the Government has not been able to show to the Court that right from the time the Notification under section 4 and the Declaration under section 6 was made till the actual work of the building for the Institute began at Porvorim, the Government had in reality decided to establish that purpose in the land in dispute. Same is the case spoken to in the decision of Raja Anand Brahma Shah v. The State of Uttar Pradesh and others, .
8. In sofar as the decisions of the Supreme Court are concerned, it must be seen in the first place that either Notification under section 4 or section 6 were challenged and it is at that stage that the matters were decided. In none of these cases a final award had been made nor the Supreme Court was called upon to decide after an award was made as to whether the proceedings taken pursuant to the Notification under section 4 or Declaration under section 6 were without application of mind.
9. Mr. Dias, next relies upon the decision of Mr. Ambnjam Menon and others v. State of Kerala and others, a Division Bench decision, . This authority lays down that when the Declaration is made under section 6 by the State without applying its mind, the proceedings are held to be vitiated or that such proceedings could be held to be pursuant to the Order vitiated by mala fides even though there may not be evidence of personal ill will, corrupt motive or improper purpose.
Mr. Dias naturally relies upon his Authority to show that in matters of this type what is relevant are legal mala fides and there need not be actual mala fides of spite, arbitrariness or corrupt motive. The petitioner has also not attributed any mala fides of this nature insofar as the action of the Government is concerned but his whole case is rested /based on the subsequent facts and events; as case of non-application of mind.
The Kerala High Court based its decision on the rejoinder filed by the State Government that Government was not aware of existence of 10 acres of land out of the acquired land for the Company still remaining unutilized and despite it sanctioned the additional acquisition under the mistaken belief that entire land pursuant to the original acquisition had been utilized. In the context of these facts, the Kerala High Court held that there had been no application of mind for the question was whether additional land was at all required.
10. He next refers to a decision of Rudmal Shionarayan Haridwar v. State of Maharashtra and others, 1980 Mh.L.J. 840. In this decision, again a Division Bench of this Court held on facts that the action of the Government was mala fide and accepted the challenge on the ground of non application of mind. The facts were very peculiar insofar as this decision is concerned. A Notification under section 4 of the Act for extension of Gaothan was issued and objection under section 5-A were negatived. Subsequently, a notification under section 6 was issued on 10th July, 1967. Further proceedings in the matter were stated on account of telegraphic order from the State Government, dated 25th October, 1967, and the land Acquisition Officer was directed by the Government to drop the acquisition proceedings with respect to a particular survey number. A fresh Notification under section 4 was issued in respect of the land belonging to the petitioner which was strongly objected to by the petitioner therein contending that he had just purchased the land and on purchase had brought about a large amount of plantation and regard being had to the dropping of land earlier, there was no surviving need for acquisition. Dropping of proceedings earlier and seeking to acquire specifically the petitioner's field was held illegal, based on mala fides and without any reason whatsoever. The Division Bench held that on facts admitted of which due notice was taken that the issue or subsequent Notification seeking to acquire petitioner's land was illegal on grounds of mala fides, abuse and colourable exercise of power with no application of mind or absence of material to form opinion. It must be, therefore, seen that this was again a case decided on facts.
11. Ganga Bishnu Swaika and another v. Calcutta Pinjrapole Society and others, has been relied upon by Mr. Dias to again show that the satisfaction arrived at by the Government vis-a-vis a public purpose qua the land is not sacrosanct and any land owner can challenge the same if it is vitiated by mala fides or non-application of mind and further again to stress that once some case is made out by the owner that his land has been taken away by colourable exercise of power, the burden is heavy on the Government to satisfy the Court by leading appropriate evidence that their action was bona fide and that the Government had applied its mind to the question properly and fairly and that way satisfaction arrived at was legal satisfaction. Mr. Dias, heavily relied upon a passage from paragraph 12 of the Report which reads thus :-
"---For, even if it is so stated a person interested in the land can always challenge as a matter of fact that the Government was not actually satisfied. In such a case the Government would have to satisfy the Court by leading evidence that it was satisfied as required by section 6."
12. Referring to the decisions of Mangal Oram & other v. The State of Orissa and another, and Gulam Mustafa & others v. The State of Maharashtra and others, , according to Mr. Dias the ratio of the Supreme Court is to be restricted, only to cases where the land has been used for the professed public purpose which was notified and declared under sections 4 and 6 and the surplus land thereafter having been put to use for different public purpose.
Since the learned Government Advocate, Shri Nadkarni, has also placed reliance on these two Authorities we can advantageously refer to these two Authorities. Insofar as the Mangal Oram's case, is concerned, a decision of 3 Judges, it is laid down that there is no principle of law by which a valid compulsory acquisition could be voided because long after the Acquiring Authority diverts it to a public purpose other than the one stated in the declaration. The supreme Court was concerned with three appeals where very vast land was acquired for the purpose of development of industries, namely, establishment of a steel plant and allied and ancillary industries. The steel plant referred to in the Notification subsequently came to be known as Rourkela Steel plant. A further Notification when issued for acquisition of additional land, some challenges were thrown and it was contended before the Supreme Court that establishment of Steel plant cannot be considered to be a development of industries and that there is a big difference between the two. The next question posed was that the acquired land could have been used for only Steel Plant and ancillary industries and not for a Civil township The Supreme Court negatived the challenge on the ground that the establishment of Steel Plant naturally postulates the construction of residential quarters for the workers to be employed in the Plant and they would also need shopping area, school for children of the employees, playground, hospital, other facilities like Post Office Banks, Clubs, Parks and, therefore, the part of the land utilized for Civil township was held not to affect the validity of the acquisition of the land. In one of the appeals, the further question was whether the land acquired by Railway Authorities which transferred 3.21 acres of land to the Notified Area Committee, Raurkela, was offending the earlier acquisition. The point raised was that this making over of the area to the Notified Area Committee was for the purpose extraneous and, therefore, the action was colourable exercise of power. The Supreme Court again negatived the challenge saying that the Notified Area Committee was the appropriate Body to construct and maintain the link road, bus and taxi stand, shops, surrounding the Railway Station and, that being so, and relying upon another authority Gulam Mustafa and others, reported in the same Volume at page 448, the challenges were negatived.
13. Coming to the authority of Gulam Mustafa and others v. The State of Maharashtra and others, it laid down that there is no principle of law by which valid compulsory acquisition stands voided long after the Acquiring Authority diverts it for public purpose other then the one stated under section 5(3) of the Declaration. The challenge in this petition was again the validity of the land acquisition proceedings whereby the land acquired by the Municipality was put to test. The Municipality had acquired land for country fair or 'mondha' under the Hyderabad Land Act and it was challenged on several grounds including mala fides and colourable exercise of power and finally also on the ground that the Municipal Committee had sold away some surplus land marking it out into separate plots, for a Housing Colony. While negativing the challenge regarding the diversion of the part of land already acquired for establishing a Housing Colony, the Supreme Court held that once the original acquisition is valid and title vested in the Municipality then how the Municipality uses the excess/surplus land is no concern of the original owner and cannot be the basis for invalidation the acquisition.
It is true that insofar as these two Authorities are concerned, the Supreme Court was seized of the matter where the bulk of the land had been used for the public purpose for which the land was notified to be acquired and, however, the surplus was then used or diverted for a purpose which had not found place in the original Notification or which was subsequently found to be an adjunct or concommittant of the earlier purpose. In the same vein, Mr. Dias also referred to a decision of this Bench relied upon by the learned Government Advocate, unreported delivered, in writ petition No. 198 of 1985 on 4th August, 1987, in Mrs. Kunda L. Bhandari v. Land Acquisition Officer & ors. This was again a case where land had been acquired by the authorities for the pubic purpose of establishment of Goa University at Kundaim but however, the Government changed its decision and established the University elsewhere. Once there was a change of the site for the University of Goa, the Government made over the land to the Goa, Daman and Diu Industrial Development Corporation which in turn sold the sites to private industrial concern. Mr. Kunda L. Bhandari, one of the owners, challenged the action of the Government saying that the land was acquired for one purpose and it was being used for another purpose which is not permissible under the Act and that way challenged the validity of the acquisition proceedings. This Court relying upon the two decision of Gulam Mustafa and Mangal Oram, and supra negatived the challenges of Mrs. Bhandari therein and held having regard to the observations, more particularly in Gulam Mustafa's case, that it is open to the Government to use the acquired land for a different purpose. According to Mr. Dias, however the case of Mrs. Bhandari was decided on the facts and circumstances of that case and it cannot be held to lay down a proposition that it is open to the Government to change the purpose and utilize the land for entirely different purpose when the land had been acquired for some definite purpose. We are, however, unable to agree with Mr. Dias that what was decided in Bhandari's case is only governing the facts of that case. Mr. Dias, however, mentions that the points presently raised in the petition about the non-application of mind vis-a-vis the nexus qua need, satisfaction and the site were not involved in Mrs. Bhandari's case and that way that case is distinguishable from the present one. We will however, come back to this case after reviewing some more authorities which are cited on behalf of the respondents.
14. On a survey of all these authorities, according to Mr. Dias, learned Counsel for the petitioner, there can be no difference between the challenge of the validity of the proceeding at the stage of notification under sections 4 and 6 and proceedings already culminated by an award, when he is able to show that there had been no application of mind at the time the Declaration was made and having regard to the facts and circumstances of this case, he further contends that there is at least a doubt created as to whether, in reality, the Government had at all applied its mind to the present acquisition. According to him, there is abundant material that at no stage the Government had really decided to construct a building for Food Craft Institute at the petitioner's land and this is clear now based on subsequent events and the fact that a building has come up elsewhere at Porvorim is enough to declare the entire proceedings void ab initio. Mr. Dias also mentions that the Government had over 87,000 square metres of land at porvorim for institutional complexes and that it is common ground that the Food Craft Institute had been functioning at a building at Porvorim although rented and, finally, the Government made available to the Institute an area of 15,000 square metres out of the area earmarked for Institutional complex that by itself is enough justification to show that, in reality, the Government never needed land which it purported to acquire when notification under section 4 and Declaration under section 6 were issued in the year 1979.
15. On behalf of the respondents, this petition is vehemently opposed and the first of the points raised by Shri Nadkarni is that the petitioner does not challenge either the project of the construction of the building for Food Craft Institute or the construction of the establishment of "Yatri Niwas", not to be public purposes. According to him, once it is accepted that both the projects fall in the category of public purpose, he then mentions that there is no prohibition for diversion of land for a different purpose provided the purpose sought to be established is again a public purpose. Therefore, he urges that no proceedings can be invalidated or held to be vitiated merely because a different public purpose is eventually or finally located in the land validly acquired for another public purpose. He now relies upon a number of authorities in support of the proposition that it is open to the Government to use the acquire land for another purpose.
16. The first in the line, according to him, is the decision in Secretary of State v. Amulya Charan Benerjee and others, reported in A.I.R. 1927 Calcutta 874. He relies upon the head-note (d) which says "Land acquired for one purpose can be used for other authorise purposes". There the Government had acquired land for the Municipality for certain purpose, i.e. for a public ghat but the municipality made ghat upon a part of it and used the rest for the market. The Court observed that there can be no objection in the Municipality using the land for any purpose for which the Statute authorised it although not for which it was professedly taken.
17. The next in line is the decision of a Division Bench of the then Mysore High Court in K.H. Srinivasan v. State of Mysore, reported in A.I.R. 1970 Mysore 185. Several propositions are discussed in this authority and one of the challenges involved was again whether the acquisition had been bona fidely made or if at all a public purpose existed for which the land had been acquired. No doubt, the question again in this case was regarding the use of the surplus land but regard being had to several passages in this decision it can be advantageously noticed that it has been clearly laid down that when the land has been compulsorily acquired by the Government it becomes Government land and when acquired by the Government for local authority and transferred to the local authority the land belongs to or becomes a property of the local authority; The ownership or proprietorship of the Statutory Body is complete but however, the, utilisation and the disposal of that property is to be governed or controlled by the provisions specially made in the Statute governing such local Body. While negativing the challenge with regard to the use of surplus land for different purpose it is held that such use cannot have any relevance to the validity of the acquisition proceedings.
18. In the decision of Baldeo Singh and others v. State of Uttar Pradesh and others, what is noticed is that it is wholly immaterial as to what purpose the authority for which the land had been acquired puts the land after it had been acquired at its instance.
19. In Union of India and others v. Nand Kishore and another, the Division Bench no doubt held that there cannot be change of purpose but however as rightly pointed out by Shri Nadkarni, the change of purpose therein was sought to be made during the course of the acquisition proceedings and, therefore, it was held that there can be no change of purpose midstream. However, it is further held that though there cannot be change of purpose when the acquisition proceedings are going on but once the acquisition proceedings are over and culminate in award, there can be no bar for the change of purpose, The principle enunciated is that once the land is vested in the authority for which it was acquired it has right to put the land to such use as it thinks proper and fit. Once vested, the owner cannot come to the Court for re-conveyance of the land on the ground that there had been change of purpose.
20. In the decision of Parshottam Jethalal Soni v. The Secretary of State for India, Bom.L.R. 1937 Vol. 39 p. 1257 it is laid down that the Land Acquisition Act no where postulates identity in the scheme by means of which the public object is to be carried out. All that is legally necessary is that the lands which it is intended to acquire for a public purpose should be notified first in section 4 and then under section 6 of this Act. Mr. Nadkarni then points out that this authority has been again reiterated in a subsequent decision of another Division Bench in the decision of Bhogilal Laherchand v. The State of Maharashtra, Bom.L.R. 1975 Vol. 77 Page 167. Answering a contention raised on behalf of the petitioner therein, the Court observed :-
"We find nothing in the Land Acquisition Act which would vitiate acquisition for public purpose when the State wants the lands for one purpose and uses it for another Public purpose."
A little later, on referring to the earlier case, it is observed :-
"We do not think that a diversion by the State of the lands acquired from one public purpose to another public purpose is prohibited by any provisions of the Land Acquisition Act."
21. These decisions apart, the learned Government Advocate then argues that once the land is vested in the Government when acquired, it is just not possible to divest the Government on any ground. He now points out that neither section 4 nor section 6 Notification had been challenged by the petitioner and the petitioner allowed his land to be acquired pursuant to which an award was declared on 22nd March, 1980 and pursuant to which possession was taken on 2nd March. Apart from the facts involved in this case, he mentions that it is not open to the petitioner now to get the land re-conveyed to him. For the interpretation of the word "vested", Mr. Nadkarni now relies upon a decision of The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust, . The word "vest" appears in section 16. For that matter section 16 reads thus :-
"When the Collector has made an award under section 11 he may take possession of the land which shall thereupon vest absolutely with the Government free from all encumbrances."
Having regard to the same word appearing in sections 15 and 17, according to Mr. Nadkarni, it is interpreted by the Supreme Court that the word "vest" has not got a fixed connotation meaning in all cases that the property is owned by a person or an authority in whom it vests. It may vest in title or it may vest in possession or it may vest in a limited sense. But what is laid down, according to him, by the Supreme Court is that the word "vest" in sections 16 and 17 to mean that once the event of a acquisition is complete it vests absolutely in the Government free from all encumbrances : that, in effect it becomes the property of the Government without any conditions or limitations either as to the title or possession and further that the Legislature has meant clearly that vesting of the property is not for any limited purpose or limited duration.
22. On an analogy, he now relies on section 48 of the Land Acquisition Act, more particularly, sub-section (1) which does not permit the Government to withdraw from any acquisition once the Collector has determined the amount of compensation and award has been made by the Government. It is his argument that once on award is made and possession taken if Government itself cannot withdraw from the acquisition much less the erstwhile owner of the land could be permitted to take back the said land. And to make his argument complete he relies on the decision of Lt. Governor of Himachal Pradesh and another v. Shri Avinash Sharma, A question arose whether once the land is taken in possession under section 17, on interpretation of section 48 of the Act, the Government could withdraw from acquisition. The Supreme Court negatived and for that matter held that when there is a ban under section 48 the Government could not even exercise its powers under section 21 of the General Clauses Act and thereby withdraw. It be noticed that the Court observed that there is no provision for reversion once the land is vested in the Government though however, it is open to the Government to withdraw the acquisition proceeding and give a go by to it but however before the land vests in it.
23. The next decision is Balwant Narayan Bhagde v. M.D. Bhagwat and others, where it is again reiterated that after possession of the land forming the subject-matter of the acquisition, the land vests in the Government and the Government or the authority for whom the acquisition is made is not at liberty to with draw from acquisition of land of which possession has already been taken.
Regard being had to these authorities, it is contended by Shri Nadkarni that no relief could be given to the petitioner which in effect would mean the reconveyance of the property to the petitioner whose land has been acquired and vested in the Government.
24. This apart and the question of change in the purpose, Mr. Nadkarni diverted his argument to show that there was in reality application of mind in the matter of acquisition of the instant land, when Notification under section 4 and Declaration under section 6 had been made. He urges that as long as there was application of mind vis-a-vis the satisfaction of the public purpose qua the need of the land sought to be acquired if at a subsequent stage the Government thought it for some good reasons not to locate that public project which was earlier professed in the Notifications, there can be no going back and acquisition can still be valid and cannot be open to challenge. He mentions that he has got all the records, namely, the Government files on the subject and was ready to place them for the scrutiny by the Court. Referring to the affidavit-in-reply of the Under secretary (Tourism) he says that at the meeting held on 21st November, 1977, the Board of the Food Craft Institute resolved that a suitable site for construction of a building for the Institute be selected at Miramar and accordingly, the Chief Town Planner suggested the site in question and this was duly approved by Government on 5th February, 1978. Accordingly, Notification under section 4 was issued dated 18th November, 1978. A Declaration was accordingly made under section 6 duly published in Government Gazette dated 28th June, 1979. The same affidavit in paragraph 7 mentions that on 15th January, 1981, the chairman of the Indian Institute of Architecture, Goa Centre, made a petition to the Chief Minister complaining against setting up of a building for the Food Craft Institute at the acquired site as the would spoil the aesthetic beauty and the environment of the area. On receipt of the letter a meeting was directed to be convened by the Chief Town Planner so that the complaint of the Chairman of the Indian Institutes of Architecture be looked into. This meeting was attended by the senior architects of the Public Works Department and the Secretary of Panaji Planning and Development Authority and the meeting held on 28th February, 1981, recommended that the building for the Food Craft Institute be not located at Miramar side for two reasons the first of which, is that the building is bound to be of a large size and, secondly, that a large number of trees would be required to be cut to accommodate such building and it further noted that the acquired site from the aesthetic and environment point of view could be located for cottages having low profile so that the minimum cutting of trees could be undertaken. Based on the recommendations, the Government decided in July, 1981, that the design of the building of the Food Craft Institute be such that it merges well with the entire background of the area. To establish further bona fides on the part of the Government and to suggest that there had been proper application of mind, Mr. Nadkarni refers to the averments made by the Under Secretary to show that Government had even taken further steps in the matter of putting up the building for the Institute and for that matter had even published tender notice dated 27th November, 1981, duly published in the Government Gazette of 4th December, 1981. By this notice, tenders were invited from contractors for the construction of the project but however, before the expiry of the last date of submission of tenders a decision was taken to keep project in abeyance as there was a proposal to change the site for the building of the Institute.
At some state it transpires from the affidavit in paragraph 8, the site at Dona Paula was proposed and even the Principal of the Food Craft Institute was directed by the Director of Education to go into the merits and demerits of the site in question as also the site at Dona Paula and in compliance thereto the Principal had submitted a report. However, the recommendation at the meeting of 28th February, 1981, prevailed and on 2nd June, 1982, the Government decided to locate the building for the Food Craft Institute at Alte Porvorim within the land admeasuring about 87,750 square metres already acquired for the Department of Education where a building for S.S.C. Board and also the Teachers Training College had already been constructed. An area of 15,000 square metres was earmarked for the building and accordingly, a tender notice was invited on 2nd July, 1984, an on accepting the tender, works order in that behalf was issued to the contractor on 9th October, 1984, and according to the averments it is expected that the work in relation to the building works are likely to be completed by 31st December, 1987.
It is now mentioned in paragraph 11 of the affidavit that during the course of finalisation of the fifth Five Year Plan for the Territory of Goa, Daman and Diu, the Chief Secretary learnt that there was a possibility of getting some additional funds from the Central Government if any scheme is implemented in the Tourism Sector. The scheme as is made known, is that if the construction of tourist accommodation is envisaged then the land should be made available by the local Government while the funds for the construction of the building are made available by the Government of India upto a ceiling of Rs. 35 lakhs and the decision was reached on 30th April, 1985, that the Tourist Complex should be located in the land acquired for the Food Craft Institute earlier and such complex should have low profile, being cottages of light structure, restaurant forming a part of it. A formal sanction from the Government of India for the scheme was obtained and a tourist hotel known as "Yatri Niwas" is now sought to be established in the land acquired. It is further averred that the tender notice in that behalf was issued on 17th October, 1986, and the tender was awarded to contractors M/s. Sardessai and Brothers by the Works Order dated 5th March, 1987, and, that too, after obtaining that necessary approval on 5th March, 1987 of the Panaji Planning and Development Authority. The contractor commenced his work on 6th April, 1987, and as the avernment goes as on 31st August, 1987, the date on which the Rule was issued in this petition, the contractor had done the work of approximately Rupees 2,22,240/- out of which, an amount of Rs. 1,72,214/- had already been paid to the contractor. What is sought to be established is 8 cottages. It is further averred that the project now envisaged of "Yatri Niwas" is planned in such a manner that as far as possible only a minimum number of trees are required to be cut and the height of each cottage as also the restaurant is restricted to a maximum of 8.5 metres.
25. The learned Government Advocate is justified to a great extent, according to us, in pointing out that at the time the Notification under section 4 and Declaration under section 6 had been issued the Government had applied its mind in the matter of location of the building for the Food Craft Institute at the land in question and what is more the Government had gone ahead a step forward in even inviting the contractors to tender for construction of that building,. We are also satisfied that there is nothing available to show to us that at that stage the Government had any misgivings or that there was no nexus between satisfaction qua the land when the Government issued Notification under sections 4 and 6 of the land Acquisition Act but however, later, some wiser Counsel prevailed with the Government and the Government changed its decision. In fact, what alerted the Government is, as mentioned earlier, the letter of Chairman of the Indian Institutes of Architectures, Goa Centre, which highlighted the ill-advisability of locating a high raised building intended by the Government at such a site. Admittedly, the site has water front and is adjacent to a beach. The Government thought over the matter and accepted the recommendation made by the Senior Town Planner and other architects involved and accepted that a project of low profile be located at the instant site and the professed public purpose could be located elsewhere.
Even accepting for the sake of argument, the submission made by Shri Dias, learned Counsel for the petitioner, that one such recommendation came, the Government wavered in establishing the project of the building for the Food Craft Institute whether it should be located firstly at Miramar, secondly at Dona Paula or at Porvorim, but this, in our view, by it self, cannot suggest that Government had not applied its mind in 1978 and 1979 when the relevant Notifications had been first issued. We see no reason to hold the Government bound by the professed project; It is equally not permissible for us to hold that the Government cannot change its project to a different site if subsequently the Government realised that the professed project could better be located elsewhere or the site which had been earlier chosen is misfit for that type of project. Merely because the Government changed its mind some 2 or 3 years later, that by itself, would not mean that the Government had applied its mind earlier. The petitioner had not otherwise levelled any specific mala fides against the Government, and all that is mentioned is that once the Government failed to satisfy its need vis-a-vis the public purpose qua the land, no application of mind entailing in legal mala fides arises. The decision of The State of Punjab and another v. Gurdial Singh and others, observes that mala fides are more easily made than proved. It further lays down that the big 'if' is required to be proved and the onus is heavy indeed. We need not go into this question any more once we have held that there had been application of mind insofar as the Government is concerned when Notification under section 4 and Declaration under section 6 had been issued as at that time the Government was satisfied that the site chosen was good enough for locating the Institute building. It is equally permissible to locate another public project in the site already acquired.
It is true that in case of Gulam Mustafa, and in the case of Mangal Oram, (supra referred to) there had been no change in the public purpose and in fact the public purpose professed in the Notification had been carried out and only surplus land had been diverted for a different purpose. It is equally true that in the present case the need professed for the construction of the building for Food Craft Institute had been satisfied elsewhere namely at Porvorim and it is equally true that the acquired land has been put to use for the construction of "Yatri Niwas", a wholly different purpose, although, undoubtedly a public purpose.
While considering the challenge, though couched in a different way in the Writ Petition No. 189 of 1986 Mrs. Kunda L. Bhandari v. Land Acquisition Officer and others, the Division Bench held relying upon the observations of Gulam Mustafa's case that compulsory acquisition cannot be voided because long after the requiring authority diverts it to another public purpose other than one stated in the Notification under section 4 and 6 of the Act. It may be observed that in Smt. Kunda L. Bhandari's case the land had been acquired for the establishment of Goa University and once the Government changed and established the Goa University elsewhere the acquired land at Kundaim Plateau was made over to Goa, Daman and Diu Industrial Corporation which, in turn, gave the land to industrial concern for establishment of industrial sheds. Insofar as the facts in the present case are concerned, it is relevant to note that the Government has in fact established another public purpose, namely, "Yatri Niwas" in the land acquired and, therefore, on facts this case stands on a much stronger footing than even the case of Smt. Kunda L. Bhandari v. Land Acquisition Officer and other, The ratio in Gulam Mustafa's case was followed in Mangal Oram's case, where the Supreme Court clearly ruled :-
"There is no principle of law by which a valid compulsory acquisition stands voided because long after the requiring authority diverts it to public purpose other than one professed"
In reply to the various authorities cited on behalf of the Government Mr. Dias, however, relies upon the decision of Ponania and others v. Secretary of State, reported in A.I.R. 1926 Madras page 1099. Mr. Dias relies on the passage which adumbrates that if the provisions of the Land Acquisition Act are not strictly complied with but are made a cloak for attempting to obtain a transfer of an indefeasible title under the guise of a public purpose, the proceedings do not operate towards the creation of a valid title to the land in Government. In relying upon this authority, what Mr. Dias urges is that if the proceedings are itself void ab initio for lack of application of mind there is no creation of a valid title merely because by the making of the award and on assuming land in possession, the Government does not acquire title and when there is no title there can be no vesting and, therefore, it is open to the petitioner to get back the land. In fact, the Madras High Court was concerned with a suit proceedings based of different facts. However, this Authority cannot stand in the fact of what we have held earlier, that, in the matter of the issuance of the Notifications under sections, 4 and 6 there had been application of mind. In our view, the observations in the Madras High Court case cannot help Shri Dias. Mr. Dias also urged that the Court's hands are not tied and when it comes across a case where based on subsequent conduct and facts the acquisition proceedings can be shown to be a cloak the petitioner can be given relief. We need not dilate on this argument as we have answered enough.
26. Another reason must prevail upon us to dismiss the petition. It is averred by the Under Secretary that as on 31st August, 1987, the contractor Mr. Sardessai & Brothers have done the work of approximately Rs. 2,22,214/-, out of which an amount of Rs. 1,72,214/- has already been paid to said contractor. Work upto plinth level has been reached of 8 cottages and foundation footings are complete and columns ready for casting in respect of the restaurant. It must be, therefore, held that the land is no more vacant and with the construction thus made, the Government has already altered its position by expending substantial amount of public funds and the restoration of the land is not possible with changes in its former conditions.
27. The learned Government Advocated invited our attention that when notice was issued to the respondents for hearing on rule and interim orders on 31st August, 1987, while making rule and interim order sought for by the petitioner, the Court has observed that in view of the stay granted, the question of payment of damages, if any, is kept open and the hearing of the petition was accordingly expedited on 14th September, 1987. This order was made in the wake of the submission of the Government Advocate that the contractor had already commenced the work and if the proceedings are stayed the work of the contractor will have to be suspended and the question of compensation arising as a result of the stay be considered. However, on merits, no submissions are made but Mr. Nadkarni now mentions that if at any time in future the Government is perforced to make any payment of compensation to the contractor the Government ought not to be precluded from recovering such damages from the petitioner to which the Government may be legally entitled to. His apprehension is that in view of the order made on 31st August, 1987, in the event of a suit being filed against the petitioner for recovery of damages, the petitioner may set up the defence that no damages could be recovered from him. We can only observe that nothing was argued on this behalf by the parties and in the event any such eventuality occurs, the interim order made on 31st August, 1987, cannot come in the way of the Government.
28. In our view, therefore, all the challenges fail and the petition is dismissed. The rule made is discharged. There shall be no order as to costs.
29. At this stage, Mr. Dias, Counsel for the petitioner, applies for oral leave for a certificate to appeal to the Supreme Court. We are satisfied that this is not a fit case for grant of such a certificate and we reject the same.