Rajasthan High Court - Jaipur
Babulal Saini vs State Of Rajasthan on 4 February, 2000
Equivalent citations: 2000(2)WLN586
ORDER Verma, J.
(1). The only question which arises in the present writ petition is whether the respondents are competent to take over the possession of part of Khasra No. 35 situated in village Bhojpura, Jaipur near Jaipur as deemed to have been acquired without issuing any notification u/s 4 and 6 of the Land Acquisition Act was applicable at the relevant time and also whether if by mistake or otherwise by in-advertance compensation is determined for the land in question in the award even though not acquired, which could not have been so determined for the reason that the land was never so acquired by any notification and the said compensation having been paid to the petitioner or his predecessors, which compensation as now admitted and not denied, as a matter of fact, stands refunded to the respondents and the respondents having accepted back the above said compensation, are still entitled to say that the land measuring 3 Bighas 10 Biswas out of Khasra No. 35 which Khasra number measured 3 Bighas and 16 Biswas has vested in the respondents and whether that the petitioner can be deprived of the fruits and the utilisation of this land which was never acquired in accordance with law and whether the petitioner can be deprived of his property without authority of law?
(2). The admitted facts are that Shri Chotte Lal son of Jhuntha Ram Mali was holding a Khatedari right of Khasra Nos. 34 measuring 2 Biswas, Khasra No. 35 measuring 3 Bigha 16 Biswa, Khasra No. 36 measuring 6 Biswa, Khasra No. 37 measuring 10 Biswa and Khasra No. 277 min. measuring 10 Biswa situated in village Bhojpura Tehsil Jaipur presently known as Jyoti Nagar, Jaipur. Vide notification dated 1.3.5.1960 issued u/S. 4 of the Land Acquisition Act as published on 9.6.1960 at page 151 of the Gazette certain land was acquired. The intention was show to acquire the aforesaid khasra numbers of Khatedari of the father of the petitioner along with other land mentioned in the notification for the purpose of constructing a stadium and the High Court building etc. (3). While issuing notification u/s 6 of the Rajasthan Land Acquisition Act which provisions were applicable at the relevant time, the notification was issued for acquisition of 6 Biswas of land only of khasra No. 35 and not for the remaining land of this khasra. Even though certain other land was also acquired of the petitioner, but the present writ petition is confined only to 3 Bigha and 10 Biswa of land in khasra No. 35 and, therefore, the acquired number of other khasra numbers are not being mentioned here being not relevant for the decision of the present case.
(4). Award was passed by the Land Acquisition Officer on 9.1.1964. However, the Land Acquisition Officer who had passed the award determined the compensation for whole of the khasra No. 35, i.e. 3 Bigha and 16 Biswa which admittedly he was not entitled to determine for the reason that there was no notification u/s 4 or 6 of the Rajasthan Land Acquisition Act in regard to the major part of Khasra No. 35 measuring 3 Bigha and 10 Biswas.
(5). This very matter in regard to some other khasra numbers which were not acquired for not having been notified but still included for compensation was taken up in the High Court by number of land owners in Durga Lal vs. State of Rajasthan (1), Mangla vs. State of Rajasthan (2), Satya Narain vs. State of Rajasthan (3), and Ishwar Ram vs. State of Rajasthan (4), which were the writ petitioners on the fact that the Stale was not authorised to take over the land or part of the land in khasra number for which no notification u/s 4 or 6 had ever been issued. A Single Bench of this court had held that for the reasons that the land in question had not been notified in the notifications by the State Government, therefore, the land could not have been acquired under the impugned notifications and that such land did not vest in State. Notifications of acquisition in the above said judgments were the same as in the present writ petition. The Court had observed as under:
'There is, however, a fundamental defect in some of the writ petitions and that defect relates to the non-mentioning of certain khasra numbers in the notification issued under section 4 of the Act which are now sought to be acquired.
In Writ Petition No. 150 of 1970 Durgalal vs. The State of Rajasthan and others (supra) Khasra No. 298/523 measuring 4 Biswas has not been mentioned in the notification issued under Section 4 of the Act. Similarly, in Writ Petition No. 188 of 1970 Mangla vs. The State of Rajasthan and others (supra) Khasra No. 204/503 measuring 3 Biswas, Khasra No. 210/544 measuring 5 Biswas; in Writ Petition No. 189 of 1970 Satya Narain vs. The State of Rajasthan and others (supra) Khasra No. 298/524 measuring 6 Biswas; in Writ Petition No. 261 of 1970 Ishwari Ram vs. The State of Rajasthan and others (supra) Khasra No. 45/496 measuring 6 Biswas have not been mentioned in the notification issued under section 4 of the Act. Since the lands mentioned hereinabove have not been notified by the State Government, they cannot be acquired under the impugned notification.' 'The result is that Writ Petition No. 1719 of 1970 Indrapuri Grab Nirman Sahkari Society Ltd. vs. The State of Rajasthan and others is allowed as aforementioned; Writ Petition No. 150 of 1970 Durgalal and others vs. The State of Rajasthan and others. No. 188 of 1970 Mangla vs. The State of Rajasthan and others, No. 189 of 1970 Satya Narain and others vs. The State of Rajasthan and others and No. 261 of 1970 Ishwari Ram vs. The State of Rajasthan and others (supras) are partly allowed. Khasra No. 298/523 measuring 4 Biswas in Writ Petition No. 150 of 1970. Khasra No. 204/503 measuring 3 Biswas and Khasra No. 210/504 measuring 5 Biswas in Writ Petition No. 188 of 1970, Khasra No. 298/524 measuring 6 Biswas in Writ Petition No. 189 of 1970 and Khasra No. 45/496 measuring 6 Biswas in Writ Petition No. 261 of 1970 shall not be deemed to have been acquired by the State Government by issuing the impugned notification and taking further proceedings in pursuance thereof.' (6). However, certain other writ petitions including the writ petition of Surajmal and others vs. State of Rajasthan and others (5), challenging the notification of acquisition itself on certain other grounds ware dismissed by the learned Single Judge on the ground that the objections in regard to the notifications were being taken after a considerable delay. Those writ petitioners whose writ petitions were dismissed on the point of delay did file the appeals being Special Appeal Nos. 310, 311, 313 to 326 and 335 of 1971 (Surajmal and others vs. The State of Rajasthan and others and other connected maters) (6). The special appeals were dismissed by the Division Bench. However, the Division Bench had observed that if any part of land in the writ petitions which were subject matter of the appeals had not been acquired by way of any notification and in that situation a direction was issued by the High Court to the respondents not to take possession of these lands because they were not duly notified u/s 4 and 6 of the Land Acquisition Act. The Division Bench observed as under:-
'Lastly, Mr. Rastogi argued that in appeal No. 335/71 land bearing No. 212/505 was not notified under Section 4 or under Section 6 of the Acquisition Act. This chuck of land measures 4 Biswas and the appellant is entitled to the same treatment as the learned Single Judge has given in Writ Petitions Nos. 150, 188 and 189 of 1970. It was also argued by Mr. S.M. Mehta that lands bearing No. 266/520 and 267/521 measuring 4 Biswas and 2 biswas respectively were not notified under Sections 4 and 6 and they deserve to be treated in a similar fashion. As the learned Single Judge despite holding that the petitions were delayed granted relief to others in regard to lands which were not included in the notifications under Sections 4 and 6, we consider it just and proper to grant similar relief in our appellate jurisdiction in regard to the lands bearing khasra Nos. 266/520, 267/521 and 212/505 and the respondents are directed not to take possession of these lands because they were not duly notified under Sections 4 and 6 of the Acquisition Act.' (7). In view of the above-said position, the counsel for the petitioner states that the-land in question for which there was no notification, nor the acquisition was notified u/s 4 or 6, even if by mistake the Land Acquisition Officer had determined the compensation and received by the petitioner by way of mistake as treating it to be the compensation for part of Khasra number which was acquired i.e. 6 Biswas only and now having been refunded back to the State Government and the State Government having so accepted and not sending it back to the petitioner, the land of the petitioner cannot be deemed to have been acquired by any stretch of imagination and the dictum of the Civil Writ Petition No. 261/70 (supra) and the dictum as given by the Division Bench in AIR 1974 (Raj.) 116 (supra) were fairly applicable in the case of the petitioner as well.
(8). The father of the petitioner Chottey Lal had filed an earlier writ petition No. 2935/92 challenging the threat of deemed acquisition in regard, to the same land of khasra No. 35 which was however, dismissed on 15.3.1994 on technical grounds but not on merits. The special appeal being Special Appeal No. 245/94 against the aforesaid order was also dismissed on the aforesaid ground and not on merits. The Government became aware of the omission of acquisition and issued a fresh notification u/s 4 in regard to the above said land on 7.1.1971 (Annexure-5), but some-how again a mistake or omission was committed and the Government faulted in not issuing any notification u/S. 6 of the Act which was to follow the notification u/S. 4 (Annexure-5) which was mandatory in nature.
(9). The matter was again taken up by the Land Acquisition Officer on 25.5.1994 and vide Annexure-G the Land Acquisition Officer had ordered that for the reasons that even after about 25 years of the notification issued u/S. 4 (Annexure-5), no notification u/S. 6 had been issued, therefore, the notification dated 7.1.1971 stood lapsed. Even as per the order of the Land Acquisition Officer in Annexure-6, it is submitted that the petitioner had an additional fresh cause of action passing of the order Annexure-6 and thus the present writ petition has been preferred with the prayer mentioned in the writ petition on the ground that petitioner can not be deprived of his property except by the process of law i.e. until and unless a valid and proper notification is issued under the Land Acquisition Act, till then no deeming clause of acquisition can be invoked for the acquisition of the land; It is further submitted that there was no notification issued in the year 1960 or 1961 u/s 4 or 6 in regard to the part of the land 3 Bigha and 10 Biswa falling in Khasra No. 35 and for the first time notification u/S. 4 was issued on 7.1.1971 which stood automatically lapsed as per order Annexure 6 for the reason that no notification u/S. 6 was issued; it is the submission that no acquisition can be allowed unless the land is notified for acquisition; Notification u/S. 4 is sine qua non for further acquisition proceedings.
(10). Challenge is also made on the ground that award of compensation even though made in regard to the area 3 Bigha 10 Biswas on 9.1.1964 is a non-est and void and without jurisdiction and could not have been passed until and unless there was notification u/s 4 followed by notification u/s 6 and, therefore, the petitioner was not bound by the award; even though the amount inadvertantly paid or received could not be treated as consent for acquisition of the property, for the reasons that the statutory provisions cannot be acquised for the acquisition of the property. It is further submitted that this very amount in regard to 3 Bighas 10 Biswas had since been deposited back and has been so accepted by the respondents by retaining it.
(11). The facts as stated are not denied. Counsel for the respondents has fairly admitted, and in my opinion rightly so, that right upto today there is no notification u/S. 4 nor such any notification was issued at any time either under the Rajasthan Land Acquisition Act or under the Land Acquisition Act in regard to part of Khasra No. 35 measuring 3 Bighas 10 Biswas except the earlier notifications issued in the year 1960 and 1961 u/S. 4 and 6 which related to 6 Biswas of land only for the said khasra number. It is also not denied that the right of the petitioner to claim compensation in the shape of allotment of residential plot to his entitlement as being claimed is still under adjudication and full compensation as ordered by allotting the residential plot in lieu of the land alleged to have been acquired for khasra No. 35 has not been allotted to the petitioner as yet. It is also not disputed that whatever the compensation qua this khasra was paid to the petitioner in the award dated 9.1.1964 and received by the petitioner has since been paid back/deposited by or on behalf of the petitioner with the respondents and the amount of such compensation has been retained by the respondents.
(12). The argument being advanced on behalf of the respondents is that for the reasons that the petitioner had earlier filed a writ petition No. 2935/92 which was dismissed on 15.3.1994 and the appeal filed against such judgment in D.B. Special Appeal No. 245/94 was also dismissed on 12.5.1994 and, therefore, the present writ petition is not maintainable being barred by the principle of resjudicata. In reply to the above-said objection being taken by the respondents in regard to the resjudicata, the petitioner replies that the principle of resjudicata are not applicable in the present case for the reasons; (1) that the earlier writ petition was not decided on merits as the petition was dismissed on technical grounds; (2) it is further submitted that assuming that the principles of resjudicata are applicable, in that situation, the petitioner is entitled lo maintain the writ petition for the reason that new fresh cause of action had arisen in favour of the petitioner when the Land Acquisition Officer himself had taken a fresh decision on 25.5.1994 vide Annexure-6 i.e. subsequent to the decision of the writ petition No. 2935/94; (3) it is also the submission that the petitioner cannot be discriminated and is to be treated equally in regard to other khatedars in whose case similar situation had arisen when the notifications for acquisition had not been issued for part of khasra numbers and a direction was given in the Civil Writ petition No. 261/70 and also by the Division Bench in the case reported in AIR 1974 Raj. 116 (supra) and once the law had been laid down by the Division Bench of this court, it is submitted that there is no reason as to why the petitioner should be deprived of such benefit by violating his fundamental right of possessing the property of his ownership which by no means can be taken away except by process of law.
(13). The petitioner submits that the dictum of law as reported in AIR 1974 Raj. 116 (supra) is equally applicable to the petitioner as well.
RESJUDICATA (14). To adjudicate upon the point of resjudicata, it is necessary to go through the judgment passed by this court in the earlier writ petition No. 2935/92 filed by the petitioner. Learned Single Judge had observed that the writ petition of the petitioner would have been allowed by the court simply on the basis of its conclusion that no notification had been issued under the Act of 1953 for acquisition of land and that the proceedings initiated with the issue of notification dated 7.1.1971 did not result in issue of a declaration under Section 6 of the Act. The findings are reproduced as under:-
'Land of a person cannot be acquired without issue of valid notification in accordance with the provisions of the Act. Acquisition proceedings, of which reference has been made in this case, were initiated with the issue of notification dated 13th May 1960. A bare look at the notification dated 13.5.1960 as well as notification dated 3.5.61 shows that the land is sought to be acquired from Khasra No. 35, measured only 6 biswas. This fact is re-established from the conduct of the respondent Government which proceeded to issue notification dated 7.1.71 under Section 4(1) of the Rajasthan Land Acquisition Act but no declaration under section 6 was published in the official gazette in respect of the land measuring 3 bigha 10 biswas falling in khasra No. 35. Logically, it has also to be held that the award was passed by the Land Acquisition Officer in respect of this part of the land without any notification for acquisition of the land. Ordinarily, this writ petition would have been allowed by the court simply on the basis of its conclusion that no notification had been issued under the Act of 1953 for acquisition of land and that the proceedings initiated with the issue of notification dated 7.1.71 did not result in issue of a declaration under section 6 of the Act.' (15). However, even though after observing that the writ petition was required to be allowed, the writ petition was dismissed by High Court on the ground that the petitioner had not mentioned in his writ petition that he had received the compensation for the entire khasra no. 35 and also a plot of 1000 sq. yds. in lieu of acquisition falling in those khasra numbers. It was observed that this fact was suppressed by the petitioner which according to the learned Single Judge was an important fact of his participation before the Land Acquisition Officer which had led to make the award. For the reason that he had not disclosed this fact in the writ petition, the petitioner is said to have made a false statement and, therefore, indulgence by the court was declined. The petitioner was non-suited on the ground that he had made a statement to the effect that he had not accepted the compensation in respect of 3 bigha and 10 biswas of land, even though as a matter of fact, he had so accepted the compensation in the year 1970. Learned Single Judge while dismissing the writ petition No. 2935/92 had observed as under:-
'Since the petitioner has not approached the court with clean hands, I am of the considered view that he does not deserve any indulgence by the court.' 'The principle of law which emerges from these decisions is that a party who is guilty of concealment of facts or misrepresentation or makes inaccurate or false statements before the court has no right of audience by the court when it exercise its jurisdiction under Article 226 of the Constitution of India. Those who seek to touch the pure fountain of justice with tainted hands deserve a strong rebuff by the court.' The petitioner Choteylal has clearly disentitled himself from any relief by this court in exercise of its jurisdiction under Article 226 of the Constitution because I am of the considered view that if he had not concealed this fact this court may not have stayed his dispossession. Having secured interim relief from the court by concealment of facts and misrepresentation the petitioner has disentitled himself from any indulgence by the court.' (16). The above-said judgment of the learned Single Judge was challenged and the Division Bench in SAW No. 245/94 had observed as under:
'We are of the considered opinion that the learned Single Judge was justified in rejecting the writ petition on the ground of laches and, therefore, we need not examine the various submissions which have been made on merit.
'We are in full agreement with the above observations of the learned Single Judge of this court. Learned Single Judge has also opined that the appellant had suppressed the material facts from the notice of this court and had not approached the court with clean hands. He has observed that the appellant had thus clearly disentitled himself from any relief in exercise of its jurisdiction under Art. 226 of the Constitution of India because the appellant having secured interim relief from this court by concealment and misrepresentation of facts had disentitled himself from any indulgence by this court.' 'We are also fortified in our views from observations of this court in the matter of Hastimal vs. State of Rajasthan (RLW 1973 (XXIV) 309) wherein the Division Bench of this court while dealing with the question of delay and laches held that exercise of power being discretionary under Art. 22G of the Constitution of India, undue delay will disentitle a person from seeking remedy under Art. 226 of the Constitution of India.' (17). From the above narration of the Single Bench's decision and the appeal filed against such judgment, it is clear that the earlier writ petition of the petitioners were not decided on merits, but the petitioner was non-suited cither on the ground of delay or on concealment of fact even though the learned Single Judge had categorically observed that but for delay and concealment of fact of receiving the compensation, the petition was liable to be allowed.
(18). In such situation whether the decision in the earlier petition shall operate as resjudicata as against the petitioner to safe-guard his fundamental right of possessing the property of his ownership ? It is not disputed that the writ petition was not decided on merits and were dismissed on delay/laches or concealment of fact. It is held by the Supreme Court in the case of Allahabad Development Authority vs. Nasiruzzaman and others (7), and Krishan Lal vs. State of J & K (8), that the principle of estoppel or resjudicata does not apply where to give effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot be overridden or defeated by a previous judgment between the parties. In the case of Allahabad Development Authority vs. Nasiruzzaman and others (supra) it was observed as under:-
'In view of the above ratio, it is seen that when the legislature has directed to act in a particular manner and the failure to act results in a consequence, the question is whether the previous order operates as resjudicata or estoppel as against the person in dispute. When the previous decision was found to be erroneous on its face, this Court held in the above judgment that it does not operate as resjudicata. We respectfully follow the ratio therein. The principle of estoppel or resjudicata does not apply where to give effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot be overridden or defeated by a previous judgment between the parties. In view of the fact that land had already stood vested in the State free from all encumbrances, the question of divesting does not arise. After the vesting has taken place, the question of lapse of notification under Section 4(1) and the declaration under Section 6 would not arise. Considered from this perspective, original direction itself was erroneous and the later direction with regard to delivery of possession of the land, in consequence, was not valid in law. Further, it is made clear that the respondents are entitled to interest at 9% for one year from the date of taking possession and thereafter at 15% per annum till the date of deposit into court. The respondent are not entitled to market value as on the date of award.' (19). In the case of Krishan Lal vs. State of J. & K, (supra) the Supreme Court had observed as under:
'Insofar as the second ground given by the High Court the same being bar of resjudicata it is clear from what has been noted above, that there was no decision on merits as regards the grievance of the appellant; and so, the principle of resjudicata had no application. The mere fad that the learned Single Judge while disposing of the Writ Petition No. 23 of 78 had observed that;
"This syndrome of errors, omissions and oddities, cannot be explained on any hypothesis other than the one that there is something fishy in the petitioner's version...."
which observations have been relied upon by the High Court in holding that the suit was barred by resjudicata do not at all make out a case of the applicability of the principle of resjudicata. The conclusion of the High Court on this scope is indeed baffling to us, because, for resjudicata to operate the involved issue must have been "heard and finally decided". There was no decision at all on the merit of the grievance of the petitioner in the aforesaid writ petition and, therefore, to take a view that the decision in earlier proceeding operated as resjudicata was absolutely erroneous, not to speak of its being uncharitable.' (20). Similar was the effect of the case in Susnil Kumar Mehta vs. Gobind Ram Bohra (dead) through LRs. (9), where it was held that the defect of jurisdiction cannot be cured by consent or waiver. The Supreme Court observed as under:-
'Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as resjudicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should he assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. If the court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of resjudicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of facts and law, which are in issue in an earlier suit ormight and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent court over the matter in issue may operate as resjudicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as resjudicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of resjudicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as resjudicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as resjudicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not resjudicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of resjudicata does not apply to a case, of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently larks jurisdiction.' (21). Reliance is also placed on the judgment in the case of Pujari Bai vs. Madan Gopal (10), Isbella Johnson (Smt.) vs. M.A. Susai (dead by LRs. and Daryao and others vs. The State of U.P. & Ors. (11), wherein it was held that where the petition under Article 226 is dismissed, not on merits, but because of laches of the party applying for the writ or because an alternative remedy is available to him, such dismissal is nor bar to a subsequent petition under Art. 32 except in cases where the facts found by the High Court may themselves be relevant even under An. 32 of the Constitution of India.
(22). From the above, it is very clear that the judgment delivered in the case of the petitioner was not on merits. Rather, the learned Single Judge in the writ petition No. 2935/92 had categorically observed that the law was in favour of the petitioner and writ required to be allowed, but because of delay and also alleged concealment of fact of having received the compensation for whole of the Khasra No. 35, there was no decision on merits and in my opinion the plea of resjudicata cannot be invoked by the respondents in the present case.
FRESH CAUSE OF ACTION (23). In the alternative, even it be assumed that the plea of resjudicata is available to the respondents, it has been argued that because of the subsequent order passed by the Land Acquisition Officer in Annexure-6 dated 25.5.1994, a fresh cause of action had arisen in favour of the petitioner, independent of the earlier writ petition, because of the verdict given by the Land Acquisition Officer on the application of the petitioner that the notification issued u/s 4 in Annexure 5 on 31.5.1971 stood lapsed for non-issuance of the notification u/s 6 which was the mandatory provision. In my opinion, the petitioner is right in saying that a new cause of action had arisen in his favour for the reason that the subsequent notification dated 31.5.1971 issued u/s 4(1) of the Land Acquisition Act stood lapsed and thus the land in question did not fall under any notification of acquisition and the petitioner had a right to approach the court after passing of the order of Annexure-6 with the prayer as made in the writ petition and thus, there is no gain saying for the respondents that the present writ petition can be dismissed either on the point of resjudicata or otherwise in view of the order passed by the respondents themselves in Annexure-6.
(24). So far the merits of the case are concerned and as mentioned above, the following facts stands admitted:
(1) there was no notification cither u/s 4 or u/s 6 or both for acquiring part of Khasra No. 35 measuring 3 Bighas 10 Biswas;
(2) award even though was not required to be given for the land which was not acquired at all, but still the Land Acquisition Officer erroneously made the award for the area of the khasra number or part of the khasra numbers which were not included in the notifications of acquisition:
(3) compensation was paid and received, may be under the mistaken view that it was for either part of the khasra number No. 35 which stood acquired i.e. 6 Biswas or for whole of the said khasra number:
(4) money so received had been returned by the petitioner even though at a very late stage:
(5) the amount so returned by the petitioner had been retained by the respondents;
(6) that even the allotment of land by way of compensation for the purpose of plots was under litigation and is even under litigation upto today and has not been allotted to the petitioner;
(7) this court in civil writ petition No. 261/70 by a Single Bench and the judgment in Division Bench reported in AIR 197-1 Raj. 116 (supra) in regard to this very notification had held that if khasra number or any part of the khasra number is not notified for acquisition, possession of such land cannot be taken over by the acquiring authority unless acquired in accordance with law:
(8) the state became conscious of the illegality or omission committed by its and did issue a notification u/s 4(1) of the Land Acquisition Act on 7.1.1971 (Annexure-5) which also lapsed because of non-issuance of the notification u/s 6 which is clear from the order passed by the Land Acquisition Officer vide Annexure 6 dated 25.5.1994.
(9) the Land Acquisition Officer field that even the notification Annexure-5 issued u/s 4 on 31.5.1971 stood lapsed;
(10) land in question is not under any acquisition at all. Above are the admitted facts.
(25). In such situation can it be said that the respondents can state claim a right on the property of 3 Bigha 10 Biswas in khasra No. 35 which had not been notified under any provisions of law for acquisition? Was the Land Acquisition Officer at any time authorised or competent to pass an award in the year 1964 itself for which land there was no notification of acquisition and even if the compensation had been paid, received and again returned, can it be said that the petitioner has lost his fundamental right or the land stands acquired without complying with the provisions of the Act? The answer obviously must go in favour of the petitioner and against the respondents.
(26). The Supreme Court in the case of Narendrajit Singh and another vs. The State of U.P. & another (12), had held that the notification u/s 4 is a sine qua non and the issuance of the notification is a condition precedent to the exercise of any further powers under the Act and a notification which does not comply with the essential requirement of that provision of law must be held to be bad. It was observed as under:-
"It becomes clear from a perusal of the said sections of the Act that the process of acquisition must start with a notification under Section 4. Even in extremely urgent cases like those mentioned in sub-section (2) of Section 17, the notification under Section 4 is a sine qua non. In some cases the Government may not follow up the notification under sub-section (1) by further proceedings specially where it finds that the land was unsuited for the purpose for which it is required. But the issue of a notification under sub-section (1) of Section 4 is a condition precedent to the exercise of any further powers under the Act and in our opinion a notification which does not comply with the essential requirement of this provision of law must be held to be bad.' 'It was urged before us that the notification was in terms of the section and that the petitioners could not complain in as much as the defect was remedied by the notification under Section 6 which was issued within a fortnight after the Section 4 notification. In our view this contention cannot be accepted. Any notification which is the first step towards depriving a man of his property must be strictly construed and courts ought not to tolerate any lapse on the part of the acquiring authority in the issue of such notification if it be of a serious nature. In the case of Babu Barkya Thakur (supra) it was pointed out by this court that-
"The proceedings begin wild a Government notification under Section 4 that land in any locality is needed or is likely to be needed for any public purpose."
"It is well known that a person interested in the land which is affected by any notification under Section 4(1) may immediately object to it and take proceedings in Court against it. In Smt. Somavanti vs. State of Punjab (1963 (2) SCR 774) one of the main questions before this Court was whether a notification under Section 4(1) and one under Section 6(1) could be issued simultaneously. Although the Court look the view that where Section 5-A was not in the way there was no irregularity in publishing the notifications on the same day, yet it observed that:
"Notification under sub-section (1) of Section 4 is a condition precedent to the making of a notification under sub-section (1) of Sec. 6."
"In our view the defect in a notification under Section 4(1) cannot be cured by giving full particulars in the notification under Section 6(1).
In this case it is apparent that even before the issue of the first notification Government had made up its mind to acquire the lands of the petitioners in as much as there was no enquiry in between the two notifications and no valid reason has been put forward to explain why the details specified in the notification under Section 6(1) could not be given in the one under Section 4(1). The fact that the petitioners did not go to Court immediately after the publication of the first notification is not a matter of any moment. The defects were not cured and cannot be glossed over by reason of the fact that the petitioners went to Court after the issue of the notification under Section 6(1)."
(27). The above said proposition of law was reiterated by the Hon'ble Apex Court reported in AIR 1971 SC 306.
(28). Annexure-6 is an order passed by the Land Acquisition Officer whereby it has been held by the Land Acquisition Officer that the notification Annexure-5 dated 31.5.1971 had stood lapsed for the reason that no notification u/s 6 had been issued. It has been authoritatively held by this court in Nahar Singh vs. State of U.P. & Others (13), wherein it was held that the award if not made within two years period of the amendment Act, renders all the proceedings u/s 4 and 6 futile and stand lapsed. This court also in Darshan Singh vs. State of Rajasthan & Ors. (14) had held that if the notification u/s 6 is not issued within the stipulated period as per the amending Act, the proceedings suffer from legal infirmity; this very view has been taken by the State itself in the order Annexure-6.
(29). In view of the discussions and reasons mentioned above, it is held which is also admitted fact that neither there is or was ever any notification issued u/s 4 of the Land Acquisition Act initially in the year 1960, nor it was followed under Section 6 of the Rajasthan Land Acquisition Act in the year 1961 and part of the land of 3 Bighas 10 Biswa in Kh. No. 35 never became a subject matter of acquisition proceedings and thus any award or any compensation paid in regard to this khasra number and area was a nullity in itself and the petitioner was not bound by any such action of the respondents. The subsequent notification issued in the year 1971 vide Annexure-5 for this very land purporting to be notification u/s 4(1) of the Rajasthan Land Acquisition' Act also stood lapsed because of the reason that it had not been followed by a notification u/s 6 of the Act and it was so observed and held by the State itself in Annexure-6 passed on 24.5.1994 and thus the land of the petitioner measuring 3 Bighas 10 Biswas of khasra No. 35 situated in village Bhojpura was never a subject matter of any acquisition and, therefore, the contention of the State cannot be accepted. The respondents had no right on the land in question until and unless it is acquired and nor it had any right on the land at any time right upto today and in such situation there is no question of the State of having possessed of the land or that possession having been taken or passed to the respondents and if any such action has been taken by the State, the action of the State in regard to the said land amounts to a nullity and without authority and without jurisdiction.
(30). The petitioner is entitled to use his land in any manner he wants to till the land is acquired in accordance with law.
(31). However, the State if still wants to acquire the land, is at liberty to issue any such notification u/s 4 of the Land Acquisition Act for the acquisition of the said land in accordance with law after complying with the provisions of Land Acquisition Act.
(32). The writ petition is allowed as prayed with a cost of Rs. 5,000/-.