Rajasthan High Court - Jaipur
Ratan Kumar vs State on 11 August, 2011
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR 1.DB Special Appeal (W) No.342/2007 (Ratan Kumar Sharma Vs. State of Raj. & Ors.) 2.DB Special Appeal (W) No.343/2007 (Mahesh Sharma & Ors. Vs. State of Raj.&Ors.) Date:11/08/2011 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MISS JUSTICE BELA M. TRIVEDI Reportable Mr. Bajrang Lal Sharma, Sr. Adv. with Mr. Babulal Sharma, Mr. A.K. Bhandari, Sr. Adv. with Mr. Vaibhav Bhargava, Mr. Kinshuk Jain, Mr. P.C. Jain, for appellants. Mr. A.K. Sharma, Sr. Adv. with Mr. Vishnu Sharma & Mr. Rachit Sharma, Mr. S.D. Khaspuria, Addl. GC, Mr. Alok Garg, for respondents.
The intra-court appeals have been preferred as against the common order dated 25.1.2007 passed by the Single Bench in Civil Writ Petitions No.3732/1996, Ratan Kumar Sharma Vs. State of Rajasthan & Ors., and 3394/1996, Mahesh Sharma & Ors. Vs. State of Rajasthan & Ors., thereby dismissing the writ petitions questioning the validity of notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) on 4.2.1991 and the declaration issued under Section 6 of the Act on 27.3.1992. Prayer was also made to quash the awards which have been passed on 18.4.1994 and 8.11.1995.
The land was acquired by the State Government for the benefit of the Rajasthan Industrial Development and Investment Corporation Ltd. (for short, RIICO). Notification under Section 4 of the Act was published in the official gazette on 5.2.1991. Newspaper publication took place on 14.3.1991 in Nav Bharat Times and on 16.3.1991 in Dainik Kut Youdh and local publicity was made, as per respondents, on 3.5.1991. Declaration under Section 6 of the Act was published in official gazette on 27.3.1992 and in two newspapers in Sandhya Darpan and Nav Bharat Times on 2.5.1992. Local publicity was made on 10.4.1992. As already mentioned, the awards were passed on 18.4.1994 and 8.11.1995.
The Single Bench has dismissed the writ petition on the ground that the petitioners had sold the land to Subhash Sindhi Housing Cooperative Society way back in 1975 and possession had also been handed over to the said Cooperative Society and the Society has divided the land into plots. Consideration was also paid to the petitioners way back in 1975. Thus, they were not having any subsisting right, title or interest in the land to challenge the land acquisition. It was also held that the petitioners were not in possession. Notification under Section 4 was published in the official gazette and two local newspapers and on the notice board of the Panchayat Samiti as per report of the Tehsildar dated 3.5.1991. Petitions have been filed in order to frustrate the acquisition. Acquisition has been undertaken strictly as per provisions of the Act. Petitioners have not come with clean hands. Aggrieved by dismissal of the writ petitions, the intra-court appeals have been preferred.
Shri Bajrang Lal Sharma, learned senior counsel appearing on behalf of the appellants alongwith Shri A.K. Bhandari, Sr. Advocate, Shri Babulal Sharma, Shri Vaibhav Bhargava, Shri Kinshuk Jain, Shri P.C. Jain, have submitted that the State Government did not apply its mind to the objections. It was necessary for the State Government to apply its mind to the objections and thereafter to render a considered decision before issuing declaration under Section 6 of the Act. Requisite satisfaction has not been recorded while assigning reasons in the declaration under Section 6 of the Act. He has placed reliance upon the decision of the Apex Court in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai & Ors. (2005) 7 SCC 627 in this regard. He has further submitted that declaration under Section 6 had been issued beyond the period of one year. Thus, as per Second Proviso of Section 6(1) of the Act, acquisition stood lapsed. No publicity was made on 3.5.1991 by the Tehsildar. The date has to be taken of the notification under Section 4 which is 5.2.1991 or, at the most, 16.3.1991 when newspaper publication took place.
It was also submitted by the learned Senior Counsel Shri B.L.Sharma appearing on behalf of the appellants that no local publicity was given to the notification under Section 4 of the Act. Thus, the acquisition is illegal and void. He has relied upon the decision in The Collector (Distt. Magistrate), Allahabad & Anr. Vs. Raja Ram Jaiswal AIR 1985 SC 1622. It was also submitted by the learned senior counsel that no semblance of inquiry under Section 5A was held. Due opportunity of hearing was not given inasmuch as copy of the reply filed by the RIICO in course of enquiry under section 5A was not supplied to the objector on the ground of confidentiality. Thus, the report submitted under Section 5A could not be said to be legal and binding. It was in denial of principle enshrined under Article 300A of the Constitution. He has relied upon the decision of the Apex Court in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai & Ors. (supra).
It was also submitted by Shri B.L.Sharma, learned senior counsel that two awards could not have been passed for which reliance has been placed on the decision in Orissa Industrial Infrastructure Development Corporation Vs. Supai Munda & Ors., (2004) 12 SCC 306. Learned counsel also contended that since there was no stay, as the awards were passed beyond the period of two years from the date of declaration under Section 6 of the Act the acquisition proceedings stood lapsed. There was no justification for passing of the award on 8.11.1995 as there was no stay by any court. It was also submitted that Asha Devi died long back before passing of the award. Thus, the award passed was nullity as against Asha Devi. Her legal heirs ought to have been brought on record before passing valid award. Consequently, the acquisition proceedings stood lapsed as no valid award in the eye of law was passed within a period of two years as against Asha Devi.
Shri A.K. Sharma, learned senior counsel appearing on before the respondent RIICO alongwith Shri Vishnu Sharma and Rachit Sharma and Shri S.D. Khaspuria, learned Addl. Govt. Counsel appearing on behalf of the State have supported the decision rendered by the Single Bench. It was contended that the declaration under Section 6 was issued within one year from the date of publicity made in the locality, i.e. on 3.5.1991. It was further submitted that the State Government has applied its mind to the objections and it is not necessary to mention the reasons in the declaration which has been issued under Section 6 of the Act. In fact, no objections were preferred by the petitioners before the Land Acquisition Officer. Thus, they could not have preferred the writ petition questioning the legality of the acquisition. It was also submitted that since there was stay by the courts, as mentioned in the award dated 8.11.1995, it was passed within two years. Thus, the period of limitation of two years did not apply with respect to the award dated 18.4.1994. The award dated 18.4.1994 is within time from the date of last publicity was made of the declaration issued under Section 6. It was also submitted that local publicity of notification under Section 4 was also made as apparent from the report (R/3/3) of the Tehsildar. It is not the case of passing two awards. Thus, the decision in Orissa Industrial Infrastructure Development Corporation Vs. Supai Munda & Ors. (supra) is quite distinguishable. With respect to death of Asha Devi, objections were required to be raised before the Land Acquisition Officer and in absence of any objection, it would not invalidate the land acquisition proceedings. The petitioners were not having any subsisting right, title or interest having transferred the land in question to Subhash Sindhi Housing Cooperative Society way back in 1975. They have also received the consideration and delivered possession, thereafter the land was divided into plots by the said Society. The Housing Cooperative Society had also preferred a civil suit in which an order of maintaining status quo was passed. The writ petitions were preferred belatedly that too after passing of the award as such, the land has vested absolutely in the State. Thus, the writ petitions could not have been entertained only on this count and having been filed belatedly were liable to be dismissed. No case for interference in the intra-court appeals is made out.
Coming to the question whether the declaration under Section 6 of the Act which was issued on 27.3.1992 was beyond the period of one year from the date of notification issued under Section 4. Second Proviso of Section 6 of the Act requires that no declaration in respect of any particular land covered by a notification under section 4 shall be made after expiry of one year from the date of publication of notification. Under Section 4, notification is required to be published in three modes. Firstly, in official gazette, secondly in two local newspapers and thirdly, local publicity is required to be made. In the instant case, gazette publication took place on 5.2.1991, newspaper publication on 14.3.1991 in Nav Bharat Times and on 16.3.1991 in Dainik Kut Youdh and local publicity was made on 3.5.1991 as apparent from the report of the Tehsildar (R3/3). Thus, we find that the declaration under Section 6 of the Act was well within time. It is the last date of issuance of such notification under Section 4 in the locality from which date, period of one year is required to be counted as laid down by the Apex Court in Urban Improvement Trust, Udaipur Vs. Bheru Lal & Ors., (2002) 7 SCC 712 and Sriniwas Ramnath Khatod Vs. State of Maharashtra & Ors., (2002) 1 SCC 689. It is clearly provided under Section 4 by way of amendment w.e.f. 24.9.1984, the last of the dates of such publication and the giving of such public notice, is the date of publication of the notification not the date of publication in first mode. Following is the provision in Section 4(1):-
4. Publication of preliminary notification and powers of officers thereupon.- (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification.
(emphasis added) Considering the aforesaid provision, the last date of publication under section 4 is to be taken as the date of publication of notification to start the period of limitation. In this context, we have no hesitation to hold that the declaration under Section 6 was issued within one year from the date of publication of the notification under section 4. Thus, it was valid. The submission raised to the contrary by learned Senior Counsel appearing on behalf of the appellant, is hereby rejected.
Coming to the submission that no inquiry under Section 5A was held in accordance with law and copy of the reply filed by the RIICO was not furnished to them on the ground of confidentiality, a perusal of report indicates that the objections have been considered. The essence of Section 5A is that the objection should be considered and decided. We find from the elaborate report that there was due consideration of the objections made by the Land Acquisition Officer and thereafter, the report was submitted to the Govt. Merely by non-furnishing of the copy of reply filed by RIICO it cannot be said that opportunity to raise objections was not granted to the petitioners. However, it cannot be said to be such an infirmity so as to invalidate the inquiry held under Section 5A of the Act.
It was also submitted that before issuing declaration under Section 6 of the Act, objections and the report were not taken into consideration by the State Government as requisite satisfaction assigning the reasons has not been recorded in the declaration issued under Section 6 of the Act. Shri Bajrang Lal Sharma, learned senior counsel, has placed reliance on the decision in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai & Ors. (supra) in which the Apex Court has laid down that Section 5A of the Act confers a valuable and important right in favour of a person whose lands are sought to be acquired and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right. The State in exercise of its power of eminent domain may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid. In the instant case, we find that the provision of Section 5A of the Act has been duly complied with. It was also submitted by the learned senior counsel that record be called for so as to satisfy as to whether one of grounds for judicial review exists. The State is required to apply its mind on the basis of the report submitted by the Collector upon making inquiry, therefor as also the recommendations made by him in that behalf. At the same time, the Apex Court has laid down that it is now well settled in view of a catena of decisions that the declaration made under Section 6 of the Act need not contain any reason. Reliance has also been placed on the Apex Court decision in Kalumiya Karimmiya Vs. State of Gujarat, (1977) 1 SCC 715 and Delhi Administration Vs. Gurdip Singh Uban, (2000) 7 SCC 296 to support said submission. In the instant case, we are not inclined to entertain the writ petition merely on the ground of delay in questioning notification and declaration. As such, it would not be appropriate to call for the record of the State Government in the instant case.
The petitioners cannot be said to be entitled to question the legality of the acquisition after the award has been passed. Once the award has been passed, the land absolutely vested in the State, as laid down in Municipal Council, Ahmednagar & Anr. Vs. Shah Hyder Beig & Ors., (2000) 2 SCC 48 in which the Apex Court has relied upon decision in C. Padma Vs. Dy. Secy. to the Govt. of Tamil Nadu, (1997) 2 SCC 627 to the effect that after the award has been passed, no writ petition can be filed challenging the acquisition notifications or against any proceeding thereunder. This has been the consistent view taken by the Hon'ble Supreme Court. In Municipal Council, Ahmednagar (supra), the Apex Court has laid down thus:-
17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C. Padma Vs. Dy. Secy. to the Govt. of T.N.) this Court observed as below: (SCC p.628, para 4)
4. The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, 1894 (for short 'the Act') in GOR No.1392 Industries dated 17.10.1962, total extent of 6 acres 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasina by Tvl. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 30.4.1964. Pursuant to the agreement executed by the company, it was handed over to Tvl. Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd. It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs No.816 Industries dated 24.3.1971 in favour of another subsidiary company. Shri Rama Vilas Service Ltd., the 5th respondent which is also another subsidiary of the Company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement in GOMs No.439 Industries dated 10.5.1985. In GOMs No.546 Industries dated 30.3.1986, the same came to be approved of. Then the appellants challenged the original COMs No.1392 Industries dated 17.10.1962 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of the compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed.
18. Similar is the view in an earlier decision of this Court in the case of Municipal Corpn. Of Greater Bombay v. Industrial Development Investment Co. (P) Ltd. Incidentally, the decision last noted was also on land acquisition and requisition under the Maharashtra Regional and Town Planning Act, 1966 and in para 29 of the Report this Court observed: (SCC p.520).
29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third-party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches.
In the instant case, there is inordinate delay in filing the writ petitions to question the validity of notification issued under Section 4 and the declaration issued under Section 6 and also the inquiry held under Section 5A. There was delay of five years in questioning the notification under Section 4 and delay of more than four years in questioning the declaration under Section 6 and inquiry under Section 5. Thus, we find that merely on the ground of inordinate delay in filing the writ petition, the petitioners cannot be permitted to question the aforesaid proceedings.
The submission raised by the learned senior counsel appearing on behalf of the appellant that no public notice in locality was published of notification under section 4 of the Act. In our opinion, local publicity was made as apparent from the report (R/3/3) of Tehsildar. The learned senior counsel has relied upon the decision in The Collector (Distt. Magistrate), Allahabad & Anr. Vs. Raja Ram Jaiswal (supra) laying down such publicity is mandatory. There is no dispute with the aforesaid proposition, however, in the instant case we find that local publicity was made on 3.5.1991 as apparent from report (R3/3) of Tehsildar.
Coming to the submission that two awards were passed which were impermissible. Learned senior counsel has placed reliance on the decision in Orissa Industrial Infrastructure Development Corporation Vs. Supai Munda & Ors. (supra). In the aforesaid case, the facts were totally different. One award was passed under Section 11 and another under Section 11(2) with respect to the same land. In the instant case, two awards which have been passed are not with respect to the same piece of land. Both the awards are with respect to different lands may be that some of the land which was not part of first award owned by same person was also covered in second award. The decision in Orissa Industrial Infrastructure Development Corporation Vs. Supai Munda & Ors. (supra) has to operate in totally different set of facts in that case one award was passed on merits with respect to same land under Section 11, the court laid down that no further award can be passed either under Section 11(1) or under Section 11(2) with consent. On the facts, the said decision has no application.
It was also submitted by Shri Bajrang Lal Sharma, learned senior counsel that the awards passed on 18.4.1994 and 8.11.1995 were beyond the period of two years from the date of declaration under Section 6 of the Act, thus proceedings for acquisition lapsed. He has relied upon Section 11A of the Act which provides that the award is required to be passed from the date of publication of the declaration. The phrase used two years from the date of publication has to be read in the context of Section 6(2) where it is provided that every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality the last of the date of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the declaration, and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected. Thus, the words used in Section 6, the date of publication of the declaration is to be the last date of such publication. Meaning thereby last date on which out of aforesaid three modes the publication was made which is to be taken as the date of publication of the declaration. The uncontroverted facts in this regard indicate with respect to declaration under section 6 publication in the Official Gazette took place on 27.3.1992, local publicity on 10.4.1992 and newspapers publication on 2.5.1992. Thus, 2.5.1992 is the date of publication of declaration as such the first award passed on 18.4.1994 was well within two years with effect from the date of publication of declaration under Section 6 in two newspapers on 2.5.1992. Consequently, we hold that the award dated 18.4.1994 was passed well within a period of two years from the date of publication of declaration under Section 6(2) as provided in Section 11A of the Act.
Coming to the submission that the second award passed on 8.11.1995 was beyond the period of two years as there was no interim stay from the court. The submission is palpably incorrect. We have requisitioned the file in which interim stay was granted by this court in SBCWP 7547/1992, Nalini N. Kamani Vs. State of Raj. & Ors. questioning the validity of the notifications and the land acquisition and perusal of the file indicates that the interim stay was granted by the Single Bench of this court on 5.1.1993 staying further proceedings with respect to acquisition of the land. In view of application filed to vacate interim order, this order was clarified much later on 14.11.1995 to the effect that only dispossession of the petitioner from the land in dispute is stayed otherwise, the respondents may continue with the acquisition proceedings upto the stage of making of the award. In view of the aforesaid interim stay and the order having passed on the application for vacating the stay by this court on 14.11.1995, we are of the considered opinion that it could not be said that the award was passed beyond the period of two years excluding the period during which there was interim stay as provided in explanation to Section-11A. It is provided in explanation to Section 11A that in computing the period of two years referred to in the section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. By excluding the period during which there was interim stay by this court, we are of the opinion that the award passed on 8.11.1995 could not be said to be beyond the period of two years. Hence, the acquisition did not lapse for that reason.
There was yet another litigation filed before the Civil Court by Subhash Sindhi Housing Cooperative Society in which order of status quo was passed on 1.4.1994. In view of the aforesaid circumstances, we have no hesitation in rejecting the aforesaid submission with respect to lapse of acquisition on the basis that second award had been passed beyond the period of two years.
Coming to the submission raised by Shri Bajrang Lal Sharma, learned senior counsel, that Asha Devi has died before the award was passed by the Land Acquisition Officer, in our opinion, this objection was required to be raised before the Land Acquisition Officer and death cannot impinge upon the validity of the acquisition proceedings. Fact remains that award was passed. If factum of award being passed in two years after excluding period of stay after declaration under section 6 which is material, on facts award was passed within two years. The writ petitions have been preferred belatedly in this court, hence we are not inclined to interfere in the acquisition proceedings particularly, when the award has been passed. It is open to the legal representatives of Asha Devi to raise this question before the Land Acquisition Officer in case they were not substituted in her place. However, we find no ground to interfere on the aforesaid ground urged on behalf of the appellants.
It was disputed on fact at bar whether the objections were in fact preferred by the appellants under Section 5A of the Act. It was submitted by Shri Bajrang Lal Sharma, learned senior counsel appearing on behalf of the appellants, that the objections were, in fact, preferred and an application was filed by Ratan Kanwar through counsel, as reflected in the inquiry report under Section 5 of the Act. Per contra, Shri A.K. Sharma, learned senior counsel appearing on behalf of the respondents, no such objections were, in fact, preferred before the Land Acquisition Officer. 65 persons preferred common objections and no objection was filed by Ratan Kanwar and Mahesh Sharma. Whatever that may be in the instant case, in case objections were filed, we are of the opinion that there was no justification to prefer the writ petitions after four years. In any view of the matter, they have participated in the compensation proceedings. Thus, there was no justification to question the legality of the acquisition after four years. In case no objections were preferred, they were precluded from filing the writ petition that too belatedly as has been held by the Apex Court in Talson Real Estate (P) Ltd. Vs. State of Maharashtra & Ors. (2007) 13 SCC 186. However, nothing much turns on this aspect as we are of the considered opinion that there is no invalidity in acquisition proceedings and the award has been passed well within the period of limitation. Apart from that , we are of the opinion that belated challenge to the acquisition could not have been entertained. Hence, the writ petitions have been rightly dismissed by the Single Bench.
It was also contended by Shri A.K. Sharma, learned senior counsel appearing on behalf of the respondent RIICO that the land having been alienated in the year 1975 to the Subhash Sindhi Housing Cooperative Society, possession has been handed over to the said Society and the land was divided into plots, consideration having been received, it was not open to the petitioners to question the legality of the acquisition made as they were not having any subsisting right, title or interest over the land in dispute. It is not disputed by the learned senior counsel appearing on behalf of the appellants that an agreement was entered into way back in 1975 but, it was submitted that the sale deeds have not been executed though consideration might have been received. We are not at the said issue. Prima facie, it appears that the civil suit was preferred by Subhash Sindhi Housing Cooperative Society in which order of status quo was passed and thereafter, the petitioners have filed the writ petitions in the year 1996 which is clearly by way of afterthought so as to espouse the cause of the housing cooperative society. Whatever may be, we have examined the case on merits. The objections raised by the appellants are not sustainable.
It was also submitted by Shri A.K. Bhandari, learned senior counsel appearing on behalf of the appellants, that it may be left open to the government to regularize certain plots in favour of the appellants. We have no hesitation in rejecting the submission. The government cannot enter into such misadventure.
In view of aforesaid discussion, we hold that the notification under Section 4, declaration under Section 6, inquiry under Section 5A, the awards passed on 18.4.1994 and 8.11.1995 are valid. The writ petitions having been preferred belatedly were liable to be dismissed and have been rightly dismissed by the Single Bench.
Resultantly, we find no ground so as to interfere in the intra-court appeals. The same are hereby dismissed with cost of Rs.5000/-.
(BELA M. TRIVEDI)J. (ARUN MISHRA)CJ. GS
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA