Rajasthan High Court - Jaipur
Bharat Bhawan Nirman Sahkari vs State (Urban Development)Ors on 25 May, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 5045 / 2014
Bharat Bhawan Nirman Sahkari Samiti Ltd., Jaipur through its
authorized signatory Shri Sanwat Singh Shekhawat S/o Shri
Hanuman Singh, aged about 42 years, R/o D-15, Uma Path, Ram
nagar, Sodala, Jaipur.
----Petitioner
Versus
1. State of Rajasthan through its Principal Secretary, Deptt. Of
Urban Development and Housing, Secretariat, Jaipur.
2. Commissioner, Jaipur Development Authority, J.L.N. Marg,
Jaipur.
3. Land Acquisition Officer, Urban Development Scheme, Jaipur,
Development Authority, J.L.N. Marg, Jaipur.
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Dhruv Mehta, Senior Advocate with Mr. R.K. Agarwal, Sr. Advocate, Mr. R.D. Rastogi, Mr. Sarthak Rastogi, Mr. Anubhav Ray, Mr. Sagnik Basu, Mr. Rajkumar Yadav, Mr. Mamoon Khanlid For Respondent(s) : Mr. Rajendra Prasad, AAG & Sr. Counsel with Mr. Ashish Sharma, Mr. Jatin Agarwal, Mr. Surya Pratap Singh, Mr. Atul Singh Chauhan, Mr. M. Siromani, Mr. Anuroop Singhi, Mr. Saurabh Jain, Mr. Manu Bhargavv, Govt.
Counsel _____________________________________________________ HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order Date of Order :: 25th May, 2017 Bharat Bhawan nirman Sahkari Samiti Limited - the petitioner have instituted the instant writ application for relief under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "the Act of 2013", for short), inter-alia, praying for a declaration that the acquisition (2 of 32) [CW-5045/2014] proceedings with reference to land owned and possessed by the petitioner - Samiti (Khasra No.87 and 88 and New Khasra No.127 & 142), deemed to have lapsed.
2. Mr. Dhruv Mehta, learned Senior Counsel, assisted by Mr. Anubhav Ray and Mr. Sagnik Basu, reiterating the pleaded facts and grounds of the writ application, submits that for any successful claim under Section 24(2) of the Act of 2013; three conditions are required to be satisfied i.e., (i) the acquisition proceedings must have been initiated under the Land Acquisition Act, 1894; (ii) the award with respect to the land in question must have been made five years or more, prior to the coming into effect of the Act of 2013 i.e. 01.01.2014, and (iii A) either compensation for the land acquired has not been paid to the beneficiary; or (iii B) the possession of the land acquired has not been taken over by the authorities.
3. According to the Counsel, the conditions aforesaid as contemplated under Section 24 of the Act of 2013, are satisfied in the instant case at hand, and therefore, the petitioner - Samiti (land owner), have the right for a declaration that the acquisition proceedings deemed to have lapsed.
4. Mr. Mehta urged that the land acquisition proceedings for the land in question were initiated by the State-respondents under the provisions of the Rajasthan Urban Improvement Act, 1959 (hereinafter referred to as "the Act of 1959", for short). A notice under Section 52(2) of the Act of 1959, was issued on 22 nd May, 1975 (Annexure-P-10), followed by a notification under Section 52(1) on 30th October, 1996. The proceedings precipitated into an (3 of 32) [CW-5045/2014] award with respect to Khasra No.88 on 31 st July, 1978, whereas no award with respect to Khasra No.87, was made until 28 th April, 2006.
5. For the Land Acquisition Act, 1894 came into force from 1 st March, 1894, and was extended to the State of Rajasthan with effect from 24th September, 1984. Subsequent to the extension of the Act of 1894 to the State of Rajasthan, the Act of 1959 was also amended in the year 1987. However, the Rajasthan Urban Improvement (Amendment) Act, 1987, was struck down by this Court as the same did not receive the assent of the President of India. Subsequent thereto, the Rajasthan Urban Improvement (Amendment and Validation) Act, 1990 (hereinafter referred to as "the Act of 1990", for short), was passed, which received the assent of the President of India on 24th March, 1995.
6. Section 60-A was inserted in the Act of 1990 by the Legislature for the same was a transitory provision for pending matters relating to acquisition of the land. Referring to sub-section (3) of Section 60-A, learned Senior Counsel asserted that the land acquisition proceedings in the instant writ application, therefore, would be deemed to have been initiated under the Act of 1894 for Section 60-A(3) contemplated a deeming provision by which any notification under Section 52(2) and Section 52 of the Act of 1959, pending on the date of the Act of 1990 coming into force, would be deemed to be notifications under Section 4(1) and Section 6(1) of the Act of 1894, respectively.
7. It is further contended that the effect of a deeming provision is to project backwards the provisions of that amending Act so as (4 of 32) [CW-5045/2014] to read them into the principal Act as they were part of the principal Act on the date on which it was notified. Thus, the new provisions, in absence of any inconsistency or absurdity, would be deemed to have always formed part of the provisions originally enacted. Therefore, applying the effect of the deeming provision contemplated under Section 60-A(3) of the Act of 1990 and taking into a logical conclusion, it would be deemed that the notification under Section 52(2) and 52(1) would be treated to be notification under Section 4(1) and Section 6(2) of the Act of 1894, and as such, it can safely be stated that acquisition proceedings in the instant case at hand were initiated under the Act of 1894. Hence, the first requirement to avail the benefit of Section 24(2) of the Act of 2013 stands satisfied. In order to establish that the award with respect to Khasra No.88 was made on 31st July, 1978 and the award with respect to Khasra No.87 was prepared on 28 th April, 2006, which received its approval from the State Government on 8th August, 2006; the documents itself speak for the fact Thus, in view of the factual matrix, as reflected from the materials available on record, second criterion as envisaged under Section 24(2) of the Act of 2013 i.e. the award with respect to the land acquisition should have been made five years prior to coming into force of the Act of 2013, cannot be disputed.
8. In order to fortify the fact that the compensation was not paid to the petitioner - Samiti for the land acquired and determined under the award, as contemplated under Section 24(2) of the Act of 2013 with reference to Khasra No.87; learned counsel urged that the Collector while making payment of (5 of 32) [CW-5045/2014] compensation or deposit of the same in the Court, is governed by mandate of Section 31 of the Act of 1894, which contemplates that the compensation determined under the award shall be regarded as paid, if it is offered to the persons interested and mere deposit of the same in the Government treasury would not suffice. Further, deposit of compensation in the Court can only be done by the Collector in cases where the compensation so determined could not be tendered to the persons interested due to the contingencies contemplated under Section 31(2) of the Act of 1894 i.e. (i) the persons interested entitled to compensation do not consent to received it; (ii) there is no person competent to alienate the land, and (iii) there is a dispute as to the title to receive compensation or as to the apportionment of it. For the draft award (Annexure-13), was prepared by the respondent No.3 (LAO), on 7/9th January, 2006 and was sent to the State Government for approval and the State Government vide its communication dated 26th April, 2006 (Annexure-14), addressed a communication to the LAO informing him that: firstly, the said award was under repealed law, thus not proper, and secondly, directed the LAO to make an award under the relevant provision of law i.e. 1894. Accordingly, the LAO thereafter made the award dated 28th April, 2006, under the Act of 1894.
9. It is further contended that admittedly, with respect to Khasra No.87, the respondents did not tender the amount of compensation as determined under the award to the petitioners and deposited the same with the Reference Court. The respondents relying upon third contingency as contemplated (6 of 32) [CW-5045/2014] under Section 31(2) of the Act of 1894 i.e. there is a dispute as to the title to receive compensation or as to the apportionment of it. However, according to the learned Senior Counsel, the said reference was made with an altogether new award i.e. award dated 17th May, 2006, the award that had never been approved nor been sanctioned by the State Government. Hence, the act of the respondents in depositing the amount of compensation in Court under an award, which was not approved and stating dispute as to the title to receive the compensation or as to the apportionment of the same, is not only illegal, but also arbitrary. For the respondents were always aware with the fact that the land in question was owned and possessed by the petitioner - Samiti even prior to notification under Section 52(2) of the Act of 1959, and that there was no dispute with erstwhile owner regarding the same. Moreover, the respondents were in complete knowledge of the fact that the petitioners were owners of the land in question with reference to Khasra No.87 and 88 in view of the registered sale deeds executed in favour of the petitioner by the erstwhile owner. Reference is also made to the sale deeds dated 24 th December, 1969 (Annexure-21) and 27th January, 1970 (Annexure-3), 18th July, 1970 (Annexure-22), 29th March, 1972 (Annexure-2) and 8th October, 1973 (Annexures-4 and 5). Furthermore, all the registered sale deeds are much prior in time to the notification under Section 52 of the Act of 1959.
10. Learned Senior Counsel further submits that the respondent
- UIT was always aware of the ownership status of the petitioner. Referring to notice that was published in Rajasthan Patrika dated (7 of 32) [CW-5045/2014] 25th June, 1974 (Annexure-6), and another notice dated 30 th November, 1975, by the Department of Town Planning, directing the Housing Cooperative Societies situated in Jaipur to submit the details of the agricultural and abadi lands held by them for allotment to their members. In response, a letter dated 10 th December, 1975 (Annexure-7), was addressed to the City Development Trust furnishing the information followed by another letter dated 25th August, 1976 (Annexure-8), to the UIT submitting therein title deeds with respect to land in question. That apart, pleadings of the writ application with reference to the knowledge of the respondents in paragraph 4 and 5, have not been denied by the respondents. The UIT was very much aware of the ownership of the petitioner, which is also reflected from its letter dated 24th June, 1977 (Annexure-23), addressed to the petitioners for submission of fresh cheque of Rs.2200/- as the earlier cheque has expired with respect to sub division of the land.
11. In response to the institution of the earlier writ petition i.e. S.B. Civil Writ Petition No.653/1978, instituted by the petitioners; learned counsel would submit that the same was instituted assailing the legality and validity of the notifications under Section 52(2) and (52(1), vires of Section 52 and 53 and with a further prayer for restraining the respondents from interfering with the possession of the respondents. The writ application instituted earlier was filed on the basis of a registered sale deed in favour of the petitioner establishing their ownership. Further, both the respondent No.2 and respondent No.3 (erstwhile UIT), were parties to the earlier writ proceedings. The statements, under (8 of 32) [CW-5045/2014] Paragraph 12 of the earlier writ petition, were denied by the respondents in their counter affidavit. Furthermore, compromise entered into between Deva Gurjar (erstwhile owner) and respondent No.3 for determination of compensation on 6 th May, 1978 (Annexure-11), was in respect of Khasras other than Khasra No.87. The compromise was followed in making the award with respect to other Khasras belonging to Deva Gurjar and not that of Khasra No.87. Specific averments made by the petitioner in this respect under paragraph 8 of the writ application have neither been dealt with by the respondents nor they have been denied.
12. The erstwhile owner of Khasra No.87 i.e Deva Gurjar vide communication dated 6th May, 1978, addressed to respondent No.3, in no uncertain terms stated that Khasra No.87 was sold by him and that he is not claiming compensation towards the same. Again, a specific statement was made with respect to the above in paragraph 8 of the writ petition, which have neither been dealt with by the respondents nor have been denied by them. Communication dated 24th August, 1978 (Annexure-24) by the petitioner to the respondent No.3, would further reflect that the petitioner requested the respondent No.3, not to make any reference with respect to Khasra No.87 and 88, without first hearing the petitioner. Admission of respondent No.3, in the award dated 28th April, 2006 (Annexure-15), has clearly proved the fact that Deva Gurjar sold the land in question.
13. From the documents and materials available on record, there remains no element of doubt that there had been never any dispute with respect to the ownership of the land in question and (9 of 32) [CW-5045/2014] the respondents were aware with the land in question. Further, in the face of observations recorded in award dated 28 th April, 2006, the plea of the respondent No.2 as to a dispute with respect to title to receive the compensation is absolutely without any basis and contrary to the documents/materials available on record. Hence, the plea of the respondents stating dispute in the backdrop of Section 30 and 31 of the Act of 1894, is misconceived and misleading.
14. The term "dispute" means a controversy having both positive and negative aspects. In the instant case at hand, there had never been any claim by the erstwhile owners against the petitioner - Samiti. Furthermore, the respondents at different stages of the acquisition proceedings were made aware of the fact that the erstwhile owners have no right, title or interest in the Khasras involved herein. Thus, there is no "dispute" in the instant case at hand so as to justify the action of the State-respondents in referring the matter to Civil Court for adjudication of the dispute as to the title to receive the compensation or as to the apportionment thereof. Therefore, deposit of compensation in the Court is in breach of Section 31(1) and Section 32(2) and cannot be construed to be compensation paid as has been held by the Supreme Court.
15. With reference to Khasra No.88, according to the counsel, undeniable position is that award was made on 31 st July, 1978. For the petitioner - Samiti was neither paid the compensation for the land acquired nor the same was deposited in the Court by the respondents. The plea of deposit in Court under Section 32(1) of (10 of 32) [CW-5045/2014] the Act of 1894, is absolutely misconceived. Specific pleadings under paragraph 8 of the writ petition as to making of the award in respect of Khasra No.88 and compensation towards the same was deposited in the Government treasury, have neither been dealt with nor denied by the respondents. Be that as it may, the communication dated 28th December, 2005, by the respondent No.3 addressed to the respondent No.2, makes it clearly evident that payment of compensation with respect to Khasra No.88 could not be made as cheque towards the same was never made available by the respondent No.3 to respondent No.2. Thus, the payment of compensation with respect to Khasra No.88 has neither been made to the petitioner nor has been deposited in Court under Section 31(2) of the Act of 1894, is apparent on the face of record.
16. As to the possession of the land involved herein, still with the petitioner - Samiti; learned counsel would submit that it is pleaded case of the respondents that the possession of the land was taken from the erstwhile owners (original khatedars) of the land and name of the respondent No.2 has been mutated in the land record as the owner of the land relying upon the memo of possession dated 7th February, 1977, with respect to Khasra No.87 and 88. For the erstwhile owner had no right, title or interest in Khasra No.88, as the same has already been sold to the petitioner. Hence, taking over of the possession in the manner alleged, by the respondents from the erstwhile owners of the land, even when they were aware of the ownership of the petitioners over the said Khasras; cannot be deemed to be valid in the eyes of law as the (11 of 32) [CW-5045/2014] persons from whom the alleged possession was taken over did not have any right to do the same.
17. In order to reiterate the factum of knowledge of ownership of the petitioners, reference has been made to the communication dated 10th December, 1975 (Annexure-7) followed by another communication dated 25th August, 1976 (Annexure-8) read with letter dated 24th June, 1977 (Annexure-23) of the UIT requesting the petitioner - Samiti, for fresh cheque towards sub division charges. Thus, the respondents were very much aware of the possession of the petitioner - Samiti, on the land involved herein, even prior to taking over of the alleged possession from the erstwhile owners. Moreover, the respondents never denied the possession of the petitioner. Hence, the petitioner is entitled for the relief prayed for in view of the deeming provision as contemplated under Section 24 of the Act of 2013.
18. In support of the contentions raised by the learned counsel for the petitioner, reliance has been placed on the opinions in the case of State of Orissa & Anr. Versus Mamata Mohanty: (2011) 3 SCC 436, Forward Construction Company & Ors. Versus Prabhat Mandal (Regd.), Andheri & Ors.: (1986) 1 SCC 100, Alka Gupta Versus Narender Kumar Gupta: (2010) 10 SCC 141, Gaurav Weldmesh Pvt. Ltd. Versus Government of NCT of Delhi & Ors.:
(2016) SCC OnLine Del 1102, Delhi Development Authority Versus M/s. Gaurav Weldmesh Pvt. Ltd. & Ors.: Civil Appeal No.8668 of 2016, Delhi Development Authority Versus Kusham Jain & Anr.:
Civil Appeal No.8477 of 2016, Hindustan Ciba Geigy Versus Union of India & Ors.: (2003) 1 SCC 134, Mariyappa & Ors. Versus State (12 of 32) [CW-5045/2014] of Karnataka & Ors.: (1998) 3 SCC 276 and J. Jayalalitha & Ors.
Versus State of Karnataka & Ors.: (2014) 2 SCC 401.
19. Per contra; Mr. Rajendra Prasad, learned Additional Advocate General, reiterating the stand in the counter affidavit asserted that the land involved herein was acquired in view of the notification dated 22nd May, 1975, under Section 52(2) and notification dated 1st November, 1976, under Section 52(1) of the Act of 1959. By virtue of Clause 4 of Section 52, the land vested in the State government free from all encumbrances. Further, possession of the land, under acquisition, was taken from the recorded khatedars whose names were reflected in the existing revenue records on 7th February, 1997. Notices under Section 9 were issued on 4th March, 1977, to the recorded khatedar tenants and award was made n 31st July, 1978, including Khasra No.88.
20. Moreover, the writ petition (S.B. Civil Writ Petition Number 653 of 1978), instituted by the petitioner, before this Court, assailing the acquisition proceedings, was dismissed vide order dated 8th August, 1991. An additional affidavit filed to bring on record the replies submitted in the earlier writ proceedings was not objected to, and accordingly, was taken on record dispensing with the formal requirement of application, in order to expedite the hearing of the matter as agreed upon by the counsel for the parties.
21. According to the learned counsel, response to the earlier writ application was filed by the State-respondents (respondent number 1 and 3 herein), and a separate reply was filed by the respondent number 2 - Urban Improvement Trust, Jaipur (U.I.T.), (13 of 32) [CW-5045/2014] and respondent number 4 - Rajasthan Housing Board, with a specific plea to the effect that Khasra No.88 belonged to Chhotu son of Pema and Bhura son of Isra, by Caste Raigar i.e. members of Scheduled Caste. Thus, sale of the land by them was hit by Section 42(b) of the Rajasthan Tenancy Act, 1955, and therefore, the transaction was void-ab-initio. Further, respondent number 4 - Rajasthan Housing Board, in its counter affidavit specifically stated that the land was acquired for Sector Number 2 of 'Malivya Nagar Scheme' of an area of 1220 Bighas and 11 Biswas including Khasra Number 87 and 88, involved herein. Furthermore, 508 Bighas of land out of the land acquired was allotted to respondent number 4 - Rajasthan Housing Board, for construction of the houses and other development work, which has already been carried out. Respondent number - 2, in its reply specifically pleaded that possession of the land was taken vide memos which were placed on record as Annexure-R/5 and R/6.
22. Admittedly, award with reference to Khasra number 87 was made on 9th January, 2006, and was sent for approval. After its acceptance, award dated 28th April, 2006, was again made and sent for approval of the State Government and after approval vide communication dated 8th August, 2006, the award amount was deposited in the Civil Court vide communication dated 24 th February, 2007. Hence, the plea to the effect that the acquisition has lapsed for neither possession was taken nor compensation was paid and a period of more than five years elapsed after the award was made as on 01.01.2014; is absolutely misconceived.
(14 of 32) [CW-5045/2014]
23. Mr. Rajendra Prasad, further urged that, physical possession of the land involved herein was taken on 7 th February, 1977, and a part of it was allotted to the Rajasthan Housing Board for development of colony known as "Malviya Nagar". The compensation with reference to Khasra number 87, was deposited in the Civil Court on 24 th February, 2007. Thus, the requirement as contemplated under Section 24(2), was fully complied with. For the sale transaction of khasra number 88 is void-ab-initio as the land was purchased from the members of the Scheduled Caste, therefore, the writ application is not maintainable in view of the law declared by the Apex Court of the land.
24. That apart, section 24(2) of the Act of 2013, is not attracted in the matters where vesting has occurred before the award was made. Hence, reference made by the counsel for the petitioner in the face of the opinion of the Supreme Court; is misleading. Further, under the Act of 1894, normal rule contemplates vesting of land on taking of possession either under Section 16, which happens only after passing of the award or under Section 17, which mandates offer of 80% compensation based on estimate.
25. It is further contended that for the land vests with the Government in view of contemplation under Section 52(1) and (4) under the Act of 1959, therefore, the contemplation under Section 24(2) of the Act of 1913, are not attracted in the instant case at hand. None of the opinions, as referred to and relied upon by the counsel for the petitioner, dealt with the issue of vesting as contemplated under the provisions of the Act of 1959. Moreover, delay in passing of the award after application of the Act of 1894 (15 of 32) [CW-5045/2014] in Rajasthan, the proceeding would not lapse under Section 11A of the Act of 1894.
26. It is further emphasized that a conjoint reading of Section 24 with Section 114 of the Act of 2013, would reveal that its operation only repeals the Act of 1894 and no other law, for the pending proceedings have been saved by virtue of Section 6 of the General Clauses Act, 1897. Section 24 of the Act of 2013, contemplates additional condition with reference to proceedings initiated under the Act of 1894 and saved by virtue of Section 114(2). Besides, plain and unambiguous language of Section 24 would reveal that there is no deeming clause contemplating any kind of fiction for it only repeals the Act of 1894 while saving pending proceedings as is evident from Section 114 of the Act of 2013.
27. For the Act of 1959 provided a complete mechanism for acquisition of the land, which is quite different from the provisions of the Act of 1894, hence, the claim of the petitioner is misconceived. Moreover, the petitioner has relied upon Section 60A(3) of the Act of 1959, as inserted vide Amendment Act of 1987, which was struck down. The reenacted provisions under the Rajasthan Urban Improvement (Amendment and Validation) Act, 1990, were enforced with effect from 24 th March, 1995. Further, amended Section 52 of the Rajasthan Urban Improvement Act was enacted with effect from 1st August, 1987. Thus, the operation of the Act of 2013 would be attracted only if the land is to be acquired thereafter under the Act of 1894. However, for the proceedings pending between 24th September, 1984, (while the (16 of 32) [CW-5045/2014] Act of 1894 was made applicable in the State of Rajasthan), and 31st July, 1985, provisions have been made for further action/proceedings by insertion of Section 60A for transitory period. A glance of Section 60A(1) would further reflect that any action under the Act of 1959, would not be open for challenge for any inconsistencies with the Act of 1894, but for further proceedings under the Act of 1894.
28. Contemplation under Section 60A(1) of Act of 1959, would further reflect that fiction for treating the notification under Section 52(1) and 52(2) as notification under Section 4 and 6 of the Act of Act of 1894, is limited only for the purpose of further action under the Act of 1894, and prescription of special time limit as contemplated under sub-section is different than the one provided under the Act of 1894. The fiction, therefore, cannot be pressed into service for declaration of these notifications under Section 4 and 6 for all purposes under the Act of 1959, to be one deemed to have been initiated under the Act of 1894 since such an interpretation would be inconsistent with Section 60A of the Act of 1959. Further, period of limitation as contemplated under Section 60A(3) is not same as provided under Section 11A of the Act of 1894. Reference at every stage to the matters for proceedings pending on 1st August, 1897, itself presupposes initiation of the proceedings prior to coming into force of Section 60A of the Act of 1959.
29. It is further pointed out that Section 3 of the Act of 1990, in no uncertain terms, declared that all actions in respect to acquisition taken under the Act of 1959, shall be deemed to be (17 of 32) [CW-5045/2014] valid and effective as if such action has been taken under Act of 1959. Thus, the action will be deemed to have been under the Act of 1959, and not under the Act of 1984.
30. Referring to provisions of Section 8 of the General Clauses Act, learned counsel would submit that an amendment in the Act referred to in another statute or its repeal and enactment can be read into the other statute only when it is legislation by reference and not when it is legislation by incorporation. Thus, in the instant case at hand, Section 60A being an integral part of the Act of 1959 itself; provisions of the Act of 1894, were incorporated only for a limited purposes as contemplated thereunder. Therefore, the case at hand can be said to be a referential legislation and the Act of 1959 and 1984 are not pari materia. Hence, the arguments raised by the learned counsel are misconceived. Further, the Act of 2013 is not supplemental to the Act of 1959, with reference to cases covered under Section 60A of the Act of 1959. The non- incorporation of the Act of 2013 into Act of 1959 would not render the Act unworkable. The provisions of the Act of 2013 further indicate that they are neither expressly nor by necessary intendment made applicable to the provisions of the Act of 1959. The Act of 2013 neither repeals various laws in the country with different provisions contained therein, nor substitutes the provisions of those laws including Section 60A of the Act of 1959.
31. Under the Act of 1894, Section 11 only requires the Land Acquisition Officer to make an enquiry as to entitlement of compensation to a particular person while Section 30 makes it discretionary to refer the dispute, if any, as to compensation for (18 of 32) [CW-5045/2014] determination by the Court. Since the revenue records reflected khatedari rights of other persons based on which notifications were issued and the petitioner claiming interest based on certain documents; the Land Acquisition Officer committed no error in recording this fact while determining the amount of compensation and referring it to the Civil Court. Further, case No.73/1975 - Deva son of Bheru Gurjar and Case No.127/1978 - Bharat Bhawan (petitioner) Versus Deva son of Bheru, were clearly indicative of conflicting interests. Hence, the deposit of compensation in the Civil Court cannot be faulted in the face of contemplation under Section 32(2) of the Act of 1894. Under the Act of 1894, an award made by the Land Acquisition Officer is only an offer on behalf of the Government and it is for that reason an award passed by the Civil Court under the Act of 1894, is accorded the status of decree of the Civil Court and not the award of Land Acquisition Officer. An enquiry by the Land Acquisition Officer for an offer in the form of award which may or may not be acceptable to the persons interested. Hence, the adjudication of rights by Civil Court as to "dispute"; is the substantive determination.
32. For the name of the petitioner was not reflected in the revenue records of the rights, therefore, the action of the State Government cannot be faulted on that count as well. Moreover, the petitioner in the earlier writ application impleaded the Rajasthan Housing Board as a party to the writ proceedings and not in the instant writ application. Therefore, in view of the post- acquisition, allotment of the land involved herein to the Rajasthan Housing Board not being a party to the writ application, the writ (19 of 32) [CW-5045/2014] application suffers with the vice of non-impleadment of necessary party, and hence, deserves to be dismissed on that count as well.
33. The petitioner used the agricultural land for non-agricultural purposes without any permission from the competent authority prior to notification of acquisition, hence, in the face of contemplation under Section 90A of the Land Revenue Act, the petitioner (its allottee members) became trespassers in view of contemplation under Section 90(5), and therefore, khatedari rights stood extinguished and as such, the petitioner is not entitled to any compensation or right to continue in possession; hence, the writ petition deserves to be dismissed. In order to support the stand, learned counsel has relied upon the opinion in the case of Rajasthan Housing Board Versus New Pink City Nirman Sahkari Samiti Limited & Anr.: (2015) 7 SCC 601, Pratap & Anr. Versus State of Rajsthan & Ors.: (1996) 3 SCC 1, Mohd. Shahabuddin Versus State of Bihar & Ors.: (2010) 4 SCC 653, Satheedevi Versus Prasanna & Anr.: (2010) 5 SCC 622, Sanjay Singh & Anr. Versus U.P. Public Service Commission, Allahabad & Anr.: (2007) 3 SCC 720, State of Uttarakhand Versus Mohan Singh & Ors.: (2012) 13 SCC 281, Mahindra and Mahindra Ltd. Versus Union of India & Anr.: (1979) 2 SCC 529, Ahuja Industries Ltd. Versus State of Karnataka & Ors.: (2003) 5 SCC 365 and Jhutharam & Ors. Versus State of Rajasthan & Ors.: S.B. Civil Writ Petition No.2442/2015.
34. I have heard the learned counsel for the parties and with their assistance, perused the relevant materials available on record as well as gave my thoughtful consideration to the (20 of 32) [CW-5045/2014] submissions at Bar.
35. The petitioner has instituted the instant writ application claiming relief under Section 24(2) of the Act of 2013, for the allegedly the land owned and possessed by the petitioner of Khasra No.87 and 88, which was the subject matter of acquisition and the acquisition has elapsed in the face of contemplation under Section 24(2) of the Act of 2013.
36. Indisputably, the acquisition proceedings of the subject land involved herein were initiated under the Act of 1894. The award was made with reference to Khasra No.87, five years before the commencement of the Act of 2013. The compensation was deposited in the Civil Court. Further the possession of the land was taken by the State-respondents and a housing project known as "Malviya Nagar", has come up on the lands included in Khasra No.87 and 88, subject matter of the writ application. In the opinion of this Court, the acquisition proceedings with reference to Khasra No.87, did not elapse. The acquisition proceedings would not attract the provisions of Section 24(2) of the Act of 2013.
37. From the facts and materials available on record, it is evident that the land bearing Khasra No.88 belonged to members of Scheduled Caste i.e. Chotu son of Pema and Bhura son of Isra, therefore, the sale of the land of Khasra No.88, by the members of Scheduled Caste to the petitioner is a transaction contrary to the mandate of Section 42(b) of the Rajasthan Tenancy Act, 1955. Thus, the sale being void-ab-initio; the claim of the petitioner is without any substance. The land of Khasra No.88, vested in State Government free from all encumbrances by virtue of (21 of 32) [CW-5045/2014] contemplation under Clause 4 of Section 52 of the Act of 1959. In the case of New Pink City Nirman Sahkari Samiti Limited & Anr. (supra), the Apex Court of the land in no uncertain terms held that a transaction contrary to the mandate of Section 42(b) of the Rajasthan Tenancy Act, 1955, is opposed to public policy, hence, is nullity and unenforceable. It will be profitable to consider the text of paragraph 16, 17, 19, 23 to 26, which read thus:
"16. In the instant case it is apparent that the Housing Society had preferred objections and was aware of the land acquisition process and determination of compensation and has filed objections which stood rejected on 4.9.1982. Thus, the constructive knowledge of the award is fairly attributable to it when it was so passed. Constructive notice in legal fiction signifies that the individual person should know as a reasonable person would have. Even if they have no actual knowledge of it. Constructive notice means a man ought to have known a fact. A person is said to have notice of a fact when he actually knows a fact but for wilful abstention from inquiry or search which he ought to have made, or gross negligence he would have known it. Constructive notice is a notice inferred by law, as distinguished from actual or formal notice; that which is held by law to amount to notice. The concept of constructive notice has been upheld by this Court in Harish Chandra (supra).
17. It is also apparent that the Society had actively participated in the other pending cases with respect to determination of compensation in which award had been passed on 2.1.1989. Thus the reference sought on the strength of the notice Under Section 12(2) issued and received on 31.12.1988 would not provide limitation to the Society for seeking reference with (22 of 32) [CW-5045/2014] respect to the four cases in which the award was passed on 30.11.1982 as notice to it was wholly unnecessary in view of rejection of its objection on the ground that it was not having right, title or interest in the land. Thus it could not be said to be 'person interested' in view of the order dated 4.9.1982. The notice was issued for reasons best known to the Special Officer. It is surprising how and for what reasons notice was issued after six years. We need not go into this aspect any further as we are of the opinion that in the facts and circumstances, the Society had a constructive notice of the award dated 30.11.1982. Thus, in view of the conjoint reading of Sections 12(2) and 18(2) of the Rajasthan Land Acquisition Act, it was not open to the LAO to refer the case to the civil court on the basis of the time barred application.
19. The Society is said to have entered into agreements to sell on 17.2.1974, 21.2.1974 and 21.2.1976. These agreements have not been placed on record by the Society. It was incumbent upon the Society to file these agreements. Be that as it may. The Society has filed certain affidavits of Khatedars along with counter affidavits filed by it. In the case of Ram Pyari and Ors. the affidavits of various Khatedars have been filed by the Society in which their caste has been mentioned as 'Bairwa'. The caste of the original Khatedars has never been disputed. 'Bairwa' caste is a Scheduled Caste. Before this Court also in the case of Ram Pyari in the SLP preferred, averments have been made to the effect that the original Khatedars belong to Scheduled Caste and the sale in favour of a person not belonging to Scheduled Caste is void as per the mandate of Section 42 of the Rajasthan Tenancy Act. In the counter affidavit filed on behalf of the Society, the factum that Khatedars are 'Bairwa' and belongs to Scheduled Caste, has not been denied. Before the (23 of 32) [CW-5045/2014] Reference Court also, the stand of the State Government was that as the Khatedars belong to Scheduled Caste, the transaction was prohibited by Section 42 of the Rajasthan Tenancy Act. On behalf of the Society, it was submitted in counter affidavit that as it is a Society, the rigor of provisions of Section 42 is not attracted and it had relied upon the circular dated 1.9.1984 issued by the Government of Rajasthan for regularisation of the land sold in violation of Section 42 of the Rajasthan Tenancy Act. The Society has failed to deny clear and categorical averments, non-denial makes the aforesaid facts undisputed one. There is not even an evasive denial that Khatedars do not belong to Scheduled Caste. Even in the additional affidavit filed on behalf of the Society in the wake of the rejoinder filed by the Petitioner in reply to the counter affidavit of Respondent No. 2, the caste of the original Khatedars has not been disputed. Thus, we are of the considered opinion that the original Khatedars are 'Bairwa' by caste which is a Scheduled Caste and they are entitled to the protection of the provisions contained in Section 42 of the Rajasthan Tenancy Act.
23. This Court in State of Rajasthan and Ors. v.
Aanjaney Organic Herbal Pvt. Ltd.
[MANU/SC/0760/2012 : (2012) 10 SCC 283] has considered the question of provisions of Section 42 of the Rajasthan Tenancy Act and held that bar is attracted to a juristic person:
"12. The expressions "Scheduled Castes" and "Scheduled Tribes", we find in Section 42(b) of the Act have to be read along with the constitutional provisions and, if so read, the expression "who is not a member of the Scheduled Caste or Scheduled Tribe"
would mean a person other than those who have been included in the public notification as per Articles 341 (24 of 32) [CW-5045/2014] and 342 of the Constitution. The expression "person" used in Section 42(b) of the Act therefore can only be a natural person and not a juristic person, otherwise, the entire purpose of that section will be defeated. If the contention of the Company is accepted, it can purchase land from Scheduled Caste/Scheduled Tribe and then sell it to a non-Scheduled Caste and Scheduled Tribe, a situation the legislature wanted to avoid. A thing which cannot be done directly cannot be done indirectly overreaching the statutory restriction.
13. We are, therefore, of the view that the reasoning of the High Court that the Respondent being a juristic person, the sale effected by a member of Scheduled Caste to a juristic person, which does not have a caste, is not hit by Section 42 of the Act, is untenable and gives a wrong interpretation to the abovementioned provision."
In view of the aforesaid dictum it is crystal clear that the sale to the Society which is a juristic person is ab initio void and not recognisable in the eye of law.
24. This Court in Manchegowda and Ors. v. State of Karnataka and Ors. [MANU/SC/0342/1984 : (1984) 3 SCC 301] has considered the validity of Sections 3, 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 which prohibited transfer of granted lands and provided for resumption thereof, it was held that even the prohibited transaction effected prior to commencement of the Act can be nullified and Sections 4 and 5 are not violative of Article 19(1)(f) as it stood prior to its omission in 1978. Neither the provision is violative of Articles 31 and 31A of the Constitution of India and a transferee shall have no property right and recovery of such property would not attract Article 31 or 31A. This Court also held that the provisions have reasonable nexus with the object (25 of 32) [CW-5045/2014] sought to be achieved. The Scheduled Castes and Scheduled Tribes form a distinctive class. Exclusion of other communities from the provision is not discriminatory. The right of the Legislature to declare such transactions to be void has been upheld by this Court in following manner:
"12. In pursuance of this policy, the Legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or Regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is hound to take time. Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Caste and Scheduled Tribe for whose benefit the granted lands are intended to be resumed. As transfers of granted lands in contravention of the terms of the grant or any law, Regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law, it must be held that the Legislature for the purpose of avoiding delay and (26 of 32) [CW-5045/2014] harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any Regulation, rule or law regulating such grant will be void and in providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in Court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes."
25. Without payment of compensation, land can be resumed has also been held by this Court and even in a case when grant was for a certain period, the land could be resumed. The vires of the provisions contained in Sections 4 and 5 resuming the land without compensation has been upheld. In Manchegowda (supra), this Court has laid down thus:
"19. We have earlier noticed that the title which is acquired by a transferee in the granted lands, transferred in contravention of the prohibition against the transfer of the granted lands, is a voidable title which in law is liable to be defeated through appropriate action and possession of such granted lands transferred in breach of the condition of prohibition could be recovered by the grantor. The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. We have further observed that by the enactment of this Act and particularly Section 4 and Section 5 thereof the Legislature is seeking to defeat the defeasible right of the transferee in such lands without the process of a prolonged legal (27 of 32) [CW-5045/2014] action with a view to speedy resumption of such granted lands for distribution thereof the original grantee or their legal representatives and in their absence to other members of the Scheduled Castes and Scheduled Tribes Communities. In our opinion, this kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Article 31 and 31A. The nature of the right of the transferee in the granted land on transfer of such lands in breach of the condition of prohibition relating to such transfer, the object of such grant and the terms thereof, also the law governing such grants and the object and the scheme of the present Act enacted for the benefit of weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Articles 31 and 31A of the Constitution.
20. In the case of Amar Singh v. Custodian, Evacuee Property, Punjab MANU/SC/0117/1957 : (1957) S.C.R. 801, this Court while considering the provisions of Administration of Evacuee Property Act 1930 (XXXI of 1950) and the nature of right in the property allotted to a quasi-permanent allottee held that the interests of a quasi-permanent allottee did not constitute property within the meaning of Articles 19(1)(f), 31(1) and 31(2) of the Constitution. This Court observed at p.
834:
25. Learned Counsel for the Petitioners has strenuously urged that under the quasi-permanent allotment scheme the allottee is entitled to a right to possession within the limits of the relevant notification and that such right to possession is itself 'property'.
That may be so in a sense. But it does not affect the question whether it is property as to attract the protection of fundamental rights under the (28 of 32) [CW-5045/2014] Constitution. If the totality of the bundle of rights of the quasi-permanent allottee in the evacuee land constituting an interest in such land, is not property entitled to protection of fundamental rights, mere possession of the land by virtue of such interest is not on any higher footing.
26. In the instant case, the transaction is ab initio void that is right from its inception and is not voidable at the volition by virtue of the specific language used in Section 42 of the Rajasthan Tenancy Act. There is declaration that such transaction of sale of holding "shall be void". As the provision is declaratory, no further declaration is required to declare prohibited transaction a nullity. No right accrues to a person on the basis of such a transaction. The person who enters into an agreement to purchase the same, is aware of the consequences of the provision carved out in order to protect weaker sections of Scheduled Castes and Scheduled Tribes. The right to claim compensation accrues from right, title or interest in the land. When such right, title or interest in land is inalienable to non- SC/ST, obviously the agreements entered into by the Society with the Khatedars are clearly void and decrees obtained on the basis of the agreement are violative of the mandate of Section 42 of the Rajasthan Tenancy Act and are a nullity. Such a prohibited transaction opposed to public policy, cannot be enforced. Any other interpretation would be defeasive of the very intent and protection carved out Under Section 42 as per the mandate of Article 46 of the Constitution, in favour of the poor castes and downtrodden persons, included in the Schedules to Articles 341 and 342 of the Constitution of India."
38. Since the land of Khasra No.88 vested in the Government; Section 11 of the Act of 1894 or the validation Act of 1990, would (29 of 32) [CW-5045/2014] not be attracted. Hence, the acquisition proceedings cannot be treated under the Act of 1894, so as to attract Section 24 of the Act of 2013 as the award was made on 31st July, 1978, and the acquisition is not shown to be in variance with the Act of 1894. Thus, the Act of 1987 (validation Act) in those cases where the land has already vested in the Government, prior to the Act of 1987, has been made applicable since 24 th September, 1984, and not prior to it. This view is further fortified from the opinion of the Supreme Court in the case of Pratap & Anr. (supra). It will be relevant to consider the import of text, which reads thus:
"11. From the facts narrated hereinabove it is clear that the Central Act was extended to the State of Rajasthan only after the land in question had vested in the State Government with the publication of the notification under Section 52(1) on 10th October, 1984. Once the vesting of the land in the State Government, free from all encumbrances, was completed, the subsequent extension of the Land Acquisition Act, 1894 to the State of Rajasthan and the amendments made by the Amending Acts to the Rajasthan Urban Improvement Trust Act becomes wholly irrelevant and of no consequence. Neither the amendments nor the extension of the Central Act can have the effect, in law or otherwise, of divesting the State of ownership of the land which had already been vested in it.
12. The provisions of Sub-section (4) of Section 52 are somewhat similar to Section 17 of the Land Acquisition Act, 1894. Just as publication of a notification under Section 52(1) vests the land in the State, free from all encumbrances, as provided by Section 52(4), similarly when possession of land is taken under Section 17(1) the land vests absolutely in the Government free from (30 of 32) [CW-5045/2014] all encumbrances. A question arose before this Court that if there is a non-compliance with the provisions of Section 5-A and an award is not made in respect to the land so acquired, would the acquisition proceedings lapse. In Satendra Prasad Jain v. State of U. P.: AIR 1993 SC 2517 , this Court held that once possession had been taken under Section 17(1) and the land vested in the Government then the Government could not withdraw from acquisition under Section 48 and the provisions of Section 11-A were not attracted and, therefore, the acquisition proceedings would not lapse on failure to make an award within the period prescribed therein. It was further held that non- compliance of Section 17(3-A), regarding part payment of compensation before taking possession, would also not render the possession illegal and entitle the Government to withdraw from acquisition. The aforesaid principle has been reiterated by this Court in P. Chinnanna v. State of A. P.: (1994) 5S CC 486 , and Awadh Bihari Yadav v. State of Bihar : (1995) 6 SCC
31. In view of the aforesaid ratio it follows that the provisions of Section 11-A are not attracted in the present case and even if it be assumed that the award has not been passed within the stipulated period, the acquisition of land does not come to an end.
13. It was contended by the learned counsel for the respondents that the State had complied with all the legal requirements in the present case. Our attention was drawn to Section 60-A of the Amending Act and the Validating Act and it was submitted, and in our opinion rightly, that Sub-section (3) of the Amending Act and Sub-section (4) of the Validating Act only required the making of the award and payment of money within the period stipulated therein. The facts narrated hereinabove show that this was done. In any case non-compliance with the provisions of this sub-
(31 of 32) [CW-5045/2014] section will not in any way affect the vesting of the land which has already taken place with the publication of the notification dated 20th April, 1984. The provisions of Sub-section (4) of Section 60-A of the Validating Act are analogous to Section 17-A of the Land Acquisition Act and as held in the aforesaid decisions of this Court non-compliance with the said provisions will not in any way amount to the divesting of acquisition which has taken place or the acquisition proceedings having lapsed."
39. Undeniably, the award, with reference to Khasra No.87, was made on 9th June, 2006, and was approved by the State Government on 28th August, 2006. The compensation was deposited on 24.04.2007. For, the award was made in the year 2006; the Act of 1987, shall be applicable.
40. From a glance of the provisions of the validation Act, it is evident that the legislative intent of the validation Act was to make applicable the provisions of the Act of 1894 to the provisions of the Local Acts, and therefore, are to be read with the provisions of the Local Acts as its part and parcel. Therefore, the provisions of the Act of 1894 shall be applicable to the provisions of the Act of 1959. Hence, the legislation is by reference and not by incorporation. Accordingly, the acquisition proceedings with reference to Khasra No.87, shall be deemed to have been initiated under the Act of 1894. In the face of mandate of Section 60-A, the action done under the Act of 1959, shall not be challenged to be in variance to the Act of 1894 and neither are they being challenged herein. Moreover, the validation Act of 1987 provides for a deeming clause for acquisition pending after its commencement to (32 of 32) [CW-5045/2014] be acquisition under the Act of 1894, which in turn comes under the ambit of the Act of 2013.
41. The dispute as to entitlement of the person to whom the compensation shall be payable, is mentioned in Section 32 of the Act of 1894. Undeniably, the revenue records reflects khatedari rights of other persons; therefore, the Land Acquisition Officer was not wrong to refer the compensation amount to the Court. Thus, the dispute between the parties i.e. original khatedars and the petitioner was evidenced by two cases between the parties indicating conflict of interest. Hence, deposit of compensation shall be deemed to be valid deposit in the Civil Court. This fact has been pleaded in para 4 of the counter affidavit filed on behalf of Jaipur Development Authority and clarified in the written submissions furnishing the case numbers.
42. For the reasons and discussions herein above; the acquisition proceedings cannot be faulted and are not liable to be declared to have lapsed by virtue of Section 24 of the Act of 2013. Thus, the writ petition is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.
43. Ordered accordingly.
44. In view of the final adjudication on the writ application, the stay application stands closed.
45. However, in the facts and circumstances of the case, there shall be no order as to costs.
(VEERENDR SINGH SIRADHANA)J. SS