Rajasthan High Court - Jodhpur
Ram Lal Gujar & Ors vs State & Ors on 14 October, 2008
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Civil Writ Petition No.7305/2008.
(Ram Lal Gujar & Others Vs. State of Rajasthan & Others)
DATE OF ORDER : October 14th, 2008
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Mr. B.L. Purohit for the petitioners.
BY THE COURT :
In this writ petition, the petitioners are challenging declaration Annex.-10 issued by the respondent Department under Section 6 of the Land Acquisition Act.
Brief facts of the case are that the State Government initiated land acquisition proceedings for extension of the Sanvaliya ji temple by notification dated 10.07.1996 and, thereafter, notification under Section 6 of the Act for acquisition of land dated 10.09.1996 was published in the Rajasthan Gazette dated 18.09.1996. The Sanvaliyaji Temple Board passed resolution on 25.10.2005 for taking steps for the acquisition of land as per the proposal. In pursuance of the resolution dated 25.10.2005. In pursuance of the resolution dated 25.10.2005, the Chief Executive Officer vide communication dated 17.12.2005 requested the Collector, Chittorgarh to take action for 2 acquiring the land. The District Collector, vide communication dated 04.01.2006, requested the Deputy Secretary, Devasthan Vibhag, Jaipur to issue notification under Section 4 of the Land Acquisition Act and to appoint the Sub Divisional Officer, Nimbahera as the Land Acquisition Officer. In pursuance of that, a notification under Section 4 of the Land Acquisition Act was issued on 18.06.2007 by the Devasthan Vibhag. The said notification was earlier challenged by the petitioners by way of filing writ petition before this Court bearing S.B. Civil Writ Petition No.4785/2007 in which the validity of the notification issued under Section 4(1) of the Land Acquisition Act, 1894 was challenged. The said writ petition was dismissed by this Court vide order dated 14.08.2007 against which the petitioners preferred appeal being D.B. Civil Special Appeal (Writ) No.921/2007 in which notices have been issued by the Division Bench.
The case of the petitioners is that during the pendency of the appeal, the State Government has issued declaration under Section 6 of the Land Acquisition Act and copy of the declaration dated 10.08.2008 was published in the news-paper Dainik Bhaskar dated 08.07.2008. As per the petitioners, the said notification is absolutely without jurisdiction and void.
Learned counsel for the petitioners vehemently argued that the land is being acquired for Hindu religious institution Shri Sanvaliyaji temple. It is contended that the Government in a secular State ought not to have issued notification under Section 4 of the Land Acquisition Act to acquire the land for the temple purposes, therefore, 3 the action of the State Government is unconstitutional and void. Learned counsel for the petitioners argued that the land is being sought to be acquired in excess of the temple vide notification issued under Section 4(1) of the Land Acquisition Act dated 10.07.2006 whereas the land acquired earlier in the year 1992 is still lying vacant and unused for the Temple Board. Learned counsel for the petitioner contended that there is no real need for acquisition of the land and the notifications issued under Section 4 and Section 6 are colourable exercise of the power.
It is further argued by learned counsel for the petitioner that notification under Section 6 of the Land Acquisition Act states that the same has been issued after considering the report of the Land Acquisition Officer under Section 5A, however, the said report can only be made by the District Collector, therefore, the declaration issued on the basis of the alleged report of the Land Acquisition Officer is without jurisdiction and void. Further, it is submitted that the Land Acquisition Officer has not allowed any opportunity of hearing to the petitioners and, straight away, on the basis of the report submitted by the Land Acquisition Officer, the notification impugned has been issued, therefore, the whole proceedings undertaken by the respondents is unconstitutional and the impugned notification issued under Section 6 of the Land Acquisition Act deserves to be quashed.
I have considered the arguments advanced by learned counsel for the petitioners.
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In my opinion, first of all, this writ petition deserves to be dismissed only on the ground that earlier against the notification issued under Section 4(1) of the Land Acquisition Act in respect of the land in question was challenged by the petitioners; but, the said writ petition filed by the petitioners was dismissed and the learned Single Judge of this Court held therein that no interference is required in the matter. It was held by the learned Single Judge in the order dated 14.08.2007 as follows :
"I do not find any substance in the contention so raised as Shri "Sanwaliaji"
Temple Board is a creation of a statute with various objects and those include religious as well as charitable activities. The Temple of "Sanwaliaji" is a well known religious centre in southern part of Rajasthan and also in Malwa region of Madhya Pradesh. Lacs of people visit the temple aforesaid and to provide comfort to them the development of the pilgrim is necessary. Thus, it cannot be said that acquisition of land beyond the performance of religious rituals of temple is not a public purpose.
I also do not find any merit in the contention of counsel for the petitioners that as the entire expenses of development and expansion is borne by "Sanwaliaji" Temple Board, therefore, the acquisition is for private purpose and not for public purpose. As stated above, "Sanwaliaji" Temple Board is a creation of a statute and, thus, it is not a private body. The reliance placed by counsel for the petitioners upon the judgment of Hon'ble Supreme Court in the case of Srinivasa Cooperative House Building Society Ltd. v. Madam Gurumurthy Sastry and others, reported in (1994) 4 SCC 675, is absolutely misplaced. In the case aforesaid Hon'ble Supreme Court was dealing with a matter relating to construction of houses by a private Cooperative Housing Building Society for its members. The "Sanwaliaji" Temple is not private property of any person and whatever development of expansion sought to be made by the Board is to be made by the Board is only for the general and public use. The capital available with the Board is also not private property but of a body i.e. created by an enactment of State legislature.
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The second contention raised by counsel for the petitioners is also meritless as the acquisition cannot be held bad for the reason that 32 bighas of land earlier acquired is still lying vacant. The project of expansion and development of a place is not a matter of completion in one stroke. The projects and expansion programmes are always subject to variations and availability of some part of land earlier acquired does not make the subsequent acquisition proceedings bad in eye of law.
I also do not find any substance in the third contention raised by counsel for the petitioners that before issuing notification under Section 4(1) of the Act of 1894 no objective application of mind was made by the Government of Rajasthan. The Government of Rajasthan certainly acted upon the proposals given by the respondent No.3 but it does not mean that the need for land acquisition was not examined or ascertained by the Government. The notification impugned at its inception mentions that the Government issued the same only after getting specified about need of the land. No material is available on record on basis of that even a remote presumption can be drawn about non-
application of mind by Government of Rajasthan. Quite half-heartedly, it is stated by counsel for the petitioners that the land acquisition proceedings are not bonafide for the reason that that those were initiated only to satisfy need of certain members of the Board. From the documents available on record, I found that the petitioners have already filed objections as required under Section 5-A of the Act of 1894 and the contention with regard to discrimination in initiating land acquisition proceedings is taken by the petitioner therein, therefore, the factual aspect relating to that can be raised and agitated by the petitioners before the Collector as provided under Section 5-A of the Act of 1894."
Against the judgment dated 14.08.2007 special appeal was preferred which is said to be pending before the Division Bench of this Court; meaning thereby, initially the notification issued under Section 4 (1) of the Land Acquisition Act in respect of the land in question was earlier challenged and the writ petition filed by the 6 petitioners was dismissed; meaning thereby, the coordinate Bench has approved the action of the respondents initiated for acquiring the land and that judgment is under adjudication before the Division Bench. Therefore, even if now the petitioners are challenging the notification issued under Section 6 of the Land Acquisition Act, but, at the same time, it is not open to the petitioners to challenge the proceedings in piecemeal and, if at all, the petitioners have any grievance, then, the petitioners can make the prayer before the Division Bench for staying the proceedings. However, in circumvention of the lawful and legitimate course, the petitioners have filed second writ petition challenging the subsequent notification issued under Section 6 of the Land Acquisition Act. Therefore, in my opinion, this writ petition is not maintainable.
With regard to the other submissions of the petitioners that the State Government is a secular State agency and, therefore, the land cannot be acquired for temple purposes. Suffice it to say in this regard that in view of the fact that the land is going to be acquired in public interest for providing sufficient place for the purpose of assemblage for the people at large in and around the temple and to provide space for parking and for other use of huge crowd of people, it goes in consonance with the objective of the government for providing social law and order safety, therefore, it cannot be said that the Devasthan Vibhag of the State Government has acted contrary to the provisions of the Constitution of India.
It may also be observed that large number of people gather at such places and in the name of secular State, in 7 fact, the State cannot shut its eyes to the safety of the people because often at rather uncared religious spots where sufficient space etc. is not provided hazard of stampede has glutted hundreds of lives and, therefore, if the State Government, in public interest, has proceeded to acquire land for providing adequate space, the intention of the State cannot be questioned and labelled unsecular. Moreover, if any proceedings in this behalf is initiated, it is not for this Court to exercise jurisdiction under Article 226 of the Constitution. The right course is to approach the Government and seek proper response to the representation.
For the reasons mentioned hereinabove, this writ petition is held not maintainable. The same is hereby dismissed.
There shall however be no order as to costs.
(Gopal Krishan Vyas) J.
Ojha, a.