Rajasthan High Court - Jaipur
Moti Bhawan Nirman Sahakari Sa vs State Of Raj & Ors on 4 July, 2017
Author: M.N. Bhandari
Bench: M.N. Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
1.S.B. CIVIL WRIT PETITION NO. 4853/2003
1. Moti Bhawan Nirman Sahakari Samiti Limited, through its
Secretary, Rekha Ram, Registered Office at N.G.S. 25, Nehru
Palace, Tonk Road, Jaipur.
2. Surendra Kumar, aged 30 years, son of Shri Shiv Prasad Verma,
resident of A-2, Sanjay Colony, Nehru Nagar, Jaipur.
....Petitioners
Versus
1. State of Rajasthan, through Secretary, Urban Development and
Housing Department, Government of Rajasthan, Jaipur.
2. The Jaipur Development Authority, through its Secretary, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur.
3. The Land Acquisition Officer, Urban Development and Housing
Department, Jaipur Development Authority, Indira Circle, Jawahar
Lal Nehru Marg, Jaipur.
4. Shri Dinesh Goyal, Commissioner, Jaipur Development
Authority, Indira Circle, Jawahar Lal Nehru Marg, Jaipur.
...Non-Petitioners
2.S.B. CIVIL WRIT PETITION NO. 7032/2003
Khudabadi Sonar Cooperative Housing Society Limited, registered
office at Kayasthon Ki Bagichi, Kalyan Ji Ka Rasta, Chand Pole
(2 of 31)
[CW-4853/2003]
Bazar, Jaipur through its Secretary, Madan Lal, son of Shri Kailash
Shankar Vyas, aged 52 years, resident of Plot No. 283, Vivek
Vihar, New Sanganer Road, Jaipur.
....Petitioner
Versus
1. State of Rajasthan, through the Secretary, Department of
Urban Development and Housing, Government of Rajasthan,
Secretariat, Jaipur.
2. The Land Acquisition Officer, Urban Development and Housing
Department, Ram Kishore Vyas Bhawan, Indira Circle, Jawahar Lal
Nehru Marg, Jaipur.
3. The Jaipur Development Authority, through its Secretary, Ram
Kishore Vyas Bhawan, Indira Circle, Jawahar Lal Nehru Marg,
Jaipur.
...Non-Petitioners
3.S.B. CIVIL WRIT PETITION NO. 7035/2003
1. Panchu son of late Shri Laxmi Narain, aged 76 years, Mali by
caste, resident of Balaji Engineering College, Mali Ki Dhani,
Machada, Tehsil Amer, District Jaipur.
2. Madan son of late Shri Laxmi Narain, aged 68 years, Mali by
caste, resident of Balaji Engineering College, Mali Ki Dhani,
Machada, Tehsil Amer, District Jaipur.
(3 of 31)
[CW-4853/2003]
3. Jana Devi, wife of late Shri Vijay Lal, aged 76 years, resident of
near Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil
Amer, District-Jaipur.
4. Ishwar Lal son of late Shri Vijay Lal, aged 56 years, resident of
near Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil
Amer, District Jaipur.
5. Amar Chand son of late Shri Vijay Lal, aged 54 years, resident
of near Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil
Amer, District - Jaipur.
6. Babu Lal son of late Shri Vijay Lal, aged 50 years, resident of
near Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil
Amer, District Jaipur.
7. Ram Pal (since expired on 24.2.2009) to be represented by his
Legal heirs/Legal Representatives:-
7.1 Naina Devi Widow of late Shri Ram Pal, aged 55 years,
resident of near Balaji Engineering College, Mali Ki Dhani,
Machada, Tehsil Amer, District Jaipur.
7.2 Puran Mal son of late Shri Ram Pal, aged 40 years, resident of
near Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil
Amer, District Jaipur.
7.3 Arvind son of late Shri Ram Pal, aged 20 years, resident of
near Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil
Amer, District Jaipur.
7.4 Santosh daughter of Ram Pal, wife of Babulal, aged 35 years,
resident of Ringash Road, Chungi Naka Ke Pass, Chomu, Jaipur.
(4 of 31)
[CW-4853/2003]
7.5 Banasrsi daughter of Ram Pal, aged 22 years, resident of near
Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil Amer,
District Jaipur.
7.6 Anita daughter of Ram Pal, aged 18 years, resident of near
Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil Amer,
District Jaipur.
8. Rudi daughter of late Shri Kana, aged 66 years, resident of near
Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil Amer,
District Jaipur.
9. Sanwalmal son of late Shri Kana, aged 48 years, resident of
near Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil
Amer, District Jaipur.
10. Nanu son of late Shri Kana, aged 44 years, resident of near
Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil Amer,
District Jaipur.
11. Shri Narayan son of late Shri Kana, aged 31 years, resident of
near Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil
Amer, District Jaipur.
12. Nathu son of late Shri Kana, aged 28 years, resident of near
Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil Amer,
District Jaipur.
13. Ram Kumar Singh son of Luna Ram Singh Choudhary, aged 70
years, resident of near Balaji Engineering College, Mali Ki Dhani,
Machada, Tehsil Amer, District Jaipur.
(5 of 31)
[CW-4853/2003]
14. Chhoti Lal son of late Shri Mahadevji, aged 74 years, resident
of near Balaji Engineering College, Mali Ki Dhani, Machada, Tehsil
Amer, District Jaipur.
15. Birdi Chand son of late Shri Mahadevji, aged 68 years,
resident of near 6 Shops, Near Biluchi Nagar, Machada, Tehsil
Amer, District Jaipur.
16. Ishwar Lal Saini, son of late Shri Chothmal, aged 54 years,
resident of near 6 Shops, Near Biluchi Nagar, Machada, Tehsil
Amer, District Jaipur.
17. Santosh Kumar Saini, son of late Shri Chothmal, aged 50
years, resident of near 6 Shops, Near Biluchi Nagar, Machada,
Tehsil Amer, District Jaipur.
18. Om Prakash son of late Shri Chothmal, aged 38 years,
resident of near 6 Shops, Near Biluchi Nagar, Machada, Tehsil
Amer, District Jaipur.
19. Rajendra Kumar son of late Shri Chothmal, aged 34 years,
resident of near 6 Shops, Near Biluchi Nagar, Machada, Tehsil
Amer, District Jaipur.
20. Geeta Devi wife of Shri Banwari Lal Sharma, aged 76 years,
resident of near Balaji Engineering College, Sumari Baori,
Machada, Tehsil Amer, District Jaipur.
21. Banwari Lal son of late Shri Gopal Sharma, Brahmin by caste,
aged 76 years, resident of near Balaji Engineering College, Sumari
Baori, Machada, Tehsil Amer, District Jaipur.
(6 of 31)
[CW-4853/2003]
22. Jai Prakash Sharma son of Shri Satya Narain Sharma, aged 39
years, resident of near Balaji Engineering College, Sumari Baori,
Machada, Tehsil Amer, District Jaipur.
....Petitioners
Versus
1. State of Rajasthan, through the Secretary, Department of
Urban Development and Housing, Government of Rajasthan,
Jaipur.
2. The Land Acquisition Officer, Urban Development and Housing
Department, Ram Kishore Vyas Bhawan, Indira Circle, Jawahar Lal
Nehru Marg, Jaipur.
3. The Jaipur Development Authority, through its Secretary, Ram
Kishore Vyas Bhawan, Indira Circle, Jawahar Lal Nehru Marg,
Jaipur.
...Non-Petitioners
4.S.B. Civil Writ Petition No. 7727/2005
1. Mangilal Son of Chothmal, (since deceased) through legal
representatives:-
(i) Sanwarmal son of Late Shri Mangilal
(ii) Madan Lal son of Late Shri Mangilal
(iii) Babulal son of Late Shri Mangilal
(7 of 31)
[CW-4853/2003]
All resident of Bad Ki Dhani, Green Nagar, Village Macheda, Tehsil
Amer, District Jaipur
2. Ram Dayal son of Chothmal, resident of Macheda, Tehsil Amer,
District Jaipur
3. Bhagwan Sahay son of Eshara, resident of Macheda, Tehsil
Amer, District Jaipur
4. Ladu Ram son of Eshara, resident of Macheda, Tehsil Amer,
District Jaipur
5. Kajod son of Eshara, resident of Macheda, Tehsil Amer, District
Jaipur
6. Smt. Mamta Sharma wife of Shri Om Prakash Sharma by caste
Bagda Brahaman, resident of Village Kasumbi, Tehsil Ladnu,
District Nagore, at present residing at F-81, Ram Path, Shyam
Nagar, Jaipur
7. Shiv Chand Saxena son of late Shri Kishan Lal Saxena, resident
of Plot No. F-202, Ram Path, Shyam Nagar, Jaipur
8. Ganpat Ram Bagda son of Luna Ram Bagda, resident of Village
Kasumbi, Tehsil Ladnu, District Nagore, at present residing at F-
81, Ram Path, Shyam Nagar, Jaipur
9. Om Prakash Sharma son of Shri Ganpat Ram Bagda, resident of
Village Kasumbi, Tehsil Ladnu, District Nagore, at present residing
at F-81, Ram Path, Shyam Nagar, Jaipur
10. Smt. Vimla Devi wife of Shri Nagar Mal Sharma, Bagda
Brahaman by caste, resident of Village Kasumbi, Tehsil Ladnu,
(8 of 31)
[CW-4853/2003]
District Nagore, at present residing at F-81, Ram Path, Shyam
Nagar, Jaipur
....Petitioners
Versus
1. State of Rajasthan, through the Secretary, Department of
Urban Development and Housing, Government of Rajasthan,
Jaipur.
2. The Land Acquisition Officer, Urban Development and Housing
Department, Ram Kishore Vyas Bhawan, Indira Circle, Jawahar Lal
Nehru Marg, Jaipur.
3. The Jaipur Development Authority, through its Secretary, Ram
Kishore Vyas Bhawan, Indira Circle, Jawahar Lal Nehru Marg,
Jaipur.
Non-petitioners
_____________________________________________________
For Petitioner(s) : Mr Saket Pareek
Mr Aditya Pareek
Mr Sarthak Rastogi
For Respondent(s) : Mr Kunal Jaiman for Mr NM Lodha, Advocate
General - for the State
Mr Rajendra Prasad, Additional Advocate
General with Mr Surya Pratap Sing
_____________________________________________________
HON'BLE MR. JUSTICE M.N. BHANDARI
Judgment
Date of Judgment : 5th July, 2017
(9 of 31)
[CW-4853/2003]
By these four writ petitions, a challenge is made to the
acquisition of land. It was made in three phases. The challenge to
the acquisition of land in second phase was earlier made. By these
writ petitions, acquisition of land in third phase has been
challenged. The facts of each case are narrated separately,
however, common questions of law are involved thus decided by
this judgment.
CW 7032/2003
It is stated that the petitioner society purchased 1/12th
share of the land belonging to Smt Ganpati Devi Dixit. It was
through agreement to sale dated 16.3.1976. The society
thereafter divided the land in 133 plots to develop a colony in the
name of Ganpati Vihar. An application for approval of the plan with
sub-division was submitted. The petitioner society earlier
submitted an application under section 90B of the Rajasthan Land
Revenue Act, 1956 (for short 'the Act of 1956') which was decided
vide order dated 23.1.2002. In the light of the order, land
resumed in favour of the State Government. The members of the
society acquired the right to get their plots regularised in
accordance with the provisions of the Act of 1956. The
construction has been raised by few plot holders. The Jaipur
Development Authority (for short 'the JDA') found it appropriate
to regularise the scheme. The said land has been acquired along
with others.
(10 of 31)
[CW-4853/2003]
CW 7727/2003
The petitioners No.1 and 2 have 1/3 rd share each in the
land situated in Village - Macheda, Tehsil - Amer, Jaipur. The
petitioners No.3 to 5 are also having land in the same village,
however, only two khasras out of many are under acquisition. The
petitioner No.2- Ram Dayal sold 0.76 hectare of land to petitioner
No.6 - Mamta Sharma on 08.04.2005 through a sale deed. The
said petitioner further sold 0.5063 hectare land to petitioner No.7-
Shiv Charan Saxena. The petitioner No.1 sold 0.76 hectare land to
petitioner No.8 - Ganpat Ram Bagda on 8.4.2005 and the said
petitioner further sold 0.5066 hectare of land to petitioner No.9 -
Om Prakash Sharma. The petitioner No.3 to 5 sold 1 bigha of land
out of 10 bigha of joint khatedari to petitioner No.10- Vimla Devi
on 13.4.2005. The name of the purchasers were mutated in the
revenue record. It is stated that notice under section 9(3) of the
Land Acquisition Act, 1894 (for short 'the Act of 1894') was issued
on the petitioners No.1 to 5 on 17.5.2005 and 20.5.2005. Their
land has been acquired and is challenged through this writ petition
CW 7035/2003
The description of land belonging to each petitioner has
been given in the petition which was subjected to acquisition. The
(11 of 31)
[CW-4853/2003]
challenge to the acquisition has been made on common grounds,
however, it is stated that out of the land belonging to the
petitioner No.13 to 22, 47 bigha of land was transferred to Balaji
Engineering College followed by an order under section 90B of the
Act of 1956 on 16.4.2002. The land holder-Kajod has sold the land
to Nathu, Shyam, Dhanna, Narayan and Panchu. Nathu and others
thereupon sold the land to Ganpati Grah Nirman Sahkari Samiti,
which has chalked out a housing scheme and made allotment of
plots. The members said to have constructed houses on the
aforesaid land. Petitioner No.20 and 21 sold their share of land to
Sindhu Nagar Cooperative Housing Society under an agreement to
sale dated 18.9.1993.
CW 4853/2003
The petitioner - Moti Bhawan Nirman Sahkari Samiti
has challenged the notification under section 4 and declaration
under section 6 of the Act of 1894 for acquisition of land for
extension of Loha Mandi.
An order under section 90B of the Act of 1956 was
passed two and half years prior to the notification under section 4.
The land was then entered in the name of the JDA thus liable to
be allotted to the members of the society as per section 54B of
the Jaipur Development Authority Act, 1982 (for short 'the Act of
(12 of 31)
[CW-4853/2003]
1982'). The order under section 90B was also passed but has not
been challenged by the respondents thus has attained finality.
The issues raised by the petitioners
The facts pertaining to each case has been given and
would further be elaborated while narrating the arguments of each
petitioners, which are more or less common.
It is a case where acquisition of land for Loha Mandi
was first initiated in the year 2001. It was for the land measuring
125 bigha but declaration under section 6 of the Act of 1894 was
made only for 29 bigha 10 biswa thus remaining land was left out.
It was on account of surrender of land by those khatedars whose
land was sought to be acquired for 300 feet wide approach road.
The surrender of land was made by them without compensation
for 100 feet wide road though proposal was for 300 feet wide
approach road. Finding that 100 feet wide approach road would be
sufficient, rest of the land for approach road was left out from the
acquisition.
The acquisition of land for Phase II was initiated with
issuance of notification under section 4 of the Act of 1894 on
25.7.2002. It was for 146 bigha of land. The declaration under
section 6 read with notification under section 17 was issued on
(13 of 31)
[CW-4853/2003]
5.2.2003 and published in the news paper on 21.5.2003 and
27.5.2003. The enquiry under section 5A was dispensed with and,
thereupon, award was passed on 16.12.2004.
A notification under section 4 of the Act of 1894 was
then issued on 20.1.2003 to acquire 47.6 hectare land in Phase-
III. It was published in the news paper on 22.1.2003. The
declaration under section 6 read with section 17(1) and (4) was
issued on 27.5.2003 and published in the news paper on
29.5.2003. The notice under section 9(1) was sent on 16.10.2003.
The award was thereupon passed on 27.9.2005.
Grounds of challenge
It is stated by learned counsel for petitioners that after
a notification under section 4 for acquisition of land for extension
of Loha Mandi, declaration under section 6 read with section
17(1) and (4) was issued on 27.5.2003 followed by a notice under
section 9(1) dated 18.10.2003. It suffers from mala fide and
discrimination has been caused as the major portion of land
sought to be acquired in Phase I was left out at the time of
declaration. The land is now to be used even for the members of
Bijli Vyapar Sangh also though it was not acquired for them. The
Sangh invited applications from the members for allotment of
plots. The JDA, vide its notification dated 5.7.2003, changed the
land use to make it for specialised Market.
(14 of 31)
[CW-4853/2003]
The Loha Mandi was to be established at the other
place and even a notification was issued on 20.7.1984. It was not
given effect for the reasons best known to the respondents. It is
also stated that in the Phase I, acquisition of 31.12 hectare of land
was sought but declaration under section 6 was made only for
7.36 hectare thus major part of the land was left out of acquisition
to bestow favour to the land holders. There was no purpose to
acquire the land for Bijli Traders as New Aatish Market has already
been established.
The JDA issued two notifications on 19.10.2003 for
allotment of land to the members of Bijli Vyapar Sangh and
traders in building material though possession of the land had not
been taken. It is apart from the fact that the plots in Phase I were
available and otherwise the government land was sufficient to
make allotment in favour of the members of the Steel Merchants
Association thus further acquisition was without requirement and
public purpose. The statute needs to be strictly construed as it
deprives a person from his land without his consent. The
acquisition otherwise suffers from favouritism and lack of
application of mind thus impugned notification deserves to be set
aside.
The reply filed by the respondents has also been
questioned as it is not by the State Government but the officers of
(15 of 31)
[CW-4853/2003]
the JDA, interested in the acquisition of land thus reply of the
State Government should be ignored.
Learned counsel for petitioners have even questioned
the notification under section 6 read with section 17(4) of the Act
of 1894 where valuable right to raise objections under section 5A
of the Act of 1894 has been taken away. It is also stated that
there was no urgency so as to invoke section 17 (1) and (4) of the
Act of 1894.
The acquisition of land in Phase II has not even been
completed so as to show need of additional land. The notification
under section 17(1) was issued without application of mind as the
recommendation made by the JDA has been accepted without
urgency. In view of the above, the acquisition proceedings are
without application of mind. A reference of the judgment of the
Apex Court in the case of "Shri Radhey Shyam(dead) through LR
and ors versus State of UP & ors", (2011) 5 SCC 553 has been
given.
Section 5A of the Act was dispensed with, though it
gives a valuable right to land holder to raise objection. It is not
only that urgency clause has been invoked without application of
mind but valuable right of the petitioners to raise objection was
also taken away. A reference of the judgment of the Apex Court in
the case of "Narayan Govind Gavale & ors versus State of
(16 of 31)
[CW-4853/2003]
Maharashtra & ors", (1977) 1 SCC 133 has been given. The issue
aforesaid was earlier settled by the Apex Court in the case of
"Union of India & ors versus Krishan Lal Arneja & ors", (2004) 8
SCC 453.
A further reference of the judgment of the Apex Court
in the case of "Prabhawati & ors versus State of Bihar & ors",
(2014) 13 SCC 721, "Greater NOIDA Industrial Development
Authority versus Devendra Kumar & ors", (2011) 12 SCC 375,
"Devender Kumar Tyagi & ors versus State of Uttar Pradesh & ors",
(2011) 9 SCC 164, "Laxmi Devi versus State of Bihar", (2015) 10
SCC 241 and "Anand Singh & anr versus State of UP & ors",
(2010) 11 SCC 242 has been given.
The petitioners have even raised the issue of mala fide
and to support the argument, reference of the judgment of the
Apex Court in the case of "State of Punjab versus Gurdial Singh",
(1980) 2 SCC 471 has been given. The reasons of mala fide have
been narrated in reference to declaration under section 6 in Phase
I of the acquisition where major part of the land was left out from
acquisition.
The acquisition of land is otherwise contrary to the
master plan. The area in dispute was reserved for residential
purpose though part of it was shown for Loha Mandi. The
(17 of 31)
[CW-4853/2003]
acquisition is not in consonance to the master plan. It is only to
benefit few after taking away valuable right of the petitioners. It is
hit by Articles 21 and 300A of the Constitution of India.
It is lastly stated that out of the total land sought to be
acquired, an order under section 90B of the Act of 1956 was
passed for the part of land. It vested in the government and was
to be allotted to the plot holders as per section 54 of the JDA Act.
Ignoring the aforesaid, acquisition of land has been sought, that
too, without compliance of section 3(f)(vi) and (vii). The approval
of the State Government was not obtained before acquisition of
land. In view of the above, prayer is made to set aside the
notification/s impugned herein with acceptance of the writ
petitions.
Learned Additional Advocate General Shri Rajendra
Prasad has contested the writ petitions. The preliminary objections
about maintainability of the writ petitions have been raised.
It is stated that Writ Petition Nos.4853/2003 and
7032/2003 have been filed by the Co-operative Societies. In Writ
Petition No.4858/2003, the petitioners have not produced any
document of title which includes the sale deed. The agreement to
sale seems to have been executed but challenge to the
Notifications has been made without specifying portion of the land
said to have been purchased by the society. A reference of the
(18 of 31)
[CW-4853/2003]
order under Section 90B of the Act of 1956 has been given but
therein land resumed in favour of the State Government. The
society or khatedar is not entitled to espouse cause of the plot-
holders, who are not before this court. In Writ Petition
No.7035/2003, it has come that petitioner Nos.1 to 12 are tenants
but they have already transferred the land to the Co-operative
Society under agreement to sale, yet joint writ petitions have
been filed. A joint writ petition by the tenant having different piece
of land and rights is not maintainable.
The preliminary objections raised in the Writ Petition
No.7727/2005 are against the land-holders who have sold the
land subsequent to the Notification under Section 4 of the Act of
1894. The sale after issuance of Notification is prohibited as per
Section 4 of the Rajasthan Lands (Restrictions on Transfer) Act,
1976 (for short "the Act of 1976"). The prayer is, accordingly,
made to dismiss the writ petitions on the preliminary objections.
Learned counsel for respondents has contested all the
issues raised by the petitioners to challenge the acquisition. The
reference of the facts pertaining to each case has been given. It is
stated that acquisition of land was for public purposes.
The Jaipur City has been expanded with growth of
population and few areas are now thickly populated. It has
(19 of 31)
[CW-4853/2003]
created traffic hazards with existence of market area in the main
city thus to ease out the traffic and congestion, a decision was
taken to have specialised markets/areas of different trades out of
city. It was observed that heavy vehicles enter in the city due to
market area therein. The shifting was required even for safety and
environmental reasons. Initially a decision was taken to shift steel
business outside the city which was even requested by the Steel
Merchants Association. To establish the market area, the
acquisition of land was sought for 31.12 hectares in the first
phase, however, declaration under Section 6 of the Act of 1894
was made for 7.63 hectares of land. It was for the reason that
land was acquired even for 300 ft. wide approach road. After the
Notification, land-holders offered their land without compensation
for approach road though with a width of 100 feet. The
Government took a decision to maintain the road accordingly, that
too, when surrender of land was made without payment of
compensation. The remaining land which was sought to be
acquired for the road was excluded while making declaration
under Section 6 of the Act of 1894. The allegations have yet been
made to show mala fide. It is without knowing the reasons as to
why remaining land was left.
In second and third phase, the acquisition proceedings
were initiated on additional requirement of the land. It was even
for the related business, to be kept at one place. It is reflected in
(20 of 31)
[CW-4853/2003]
the notesheet dated 13th January, 2003. The relevant portion of
which is quoted hereunder:
"1- t;iqj 'kgj ds ckgjh {ks= esa lqfu;ksftr 'kgjh fodkl dks e/; utj
j[krs gq, Fkhe vk/kkfjr O;kikfjd dsUnzksa dk fuekZ.k djk;k tk jgk gSA blh
dMh esa t;iqj 'kgj dh lhek ds ekpsMk xzke esa yksgk e.Mh dks fodflr
fd;k tk jgk gSA yksgk e.Mh ds izFke Qst dk dk;Z djk;k tk pqdk gSA
ftlesa lM+dksa ds fodkl ds lkFk&lkFk fo|qr ,oa ty vkiwfrZ dk dk;Z
djk;k tk pqdk gS rFkk izFke Qst ds ;kstuk {ks= esa miyC/k leLr Hkw[kaMksa
dk vkoaVu Hkh fd;k tk pqdk gSA izFke Qst ds lkFk&lkFk f}rh; ,oa r`rh;
Qst gsrq Hkh Hkwfe vf/kxzg.k dh dk;Zokgh izkjaHk dh tk pqdh gSA
2- f}rh; ,oa r`rh; Qst esa fcfYMax eSVsfj;y ds lkFk&lkFk gkMZos;j e.Mh
dk Hkh fuekZ.k djk;k tk;sxk ,oa 'kgj ds vUn:uh Hkkx esa fLFkr yksgk
e.Mh] gkbZos;j e.Mh o fcfYMax eSVsfj;y ls lEcfU/kr vU; lkexzh ds
O;olk; dks bl ;kstuk {ks= esa LFkkUrfjr fd;k tk;sxkA
3- ;g ,d cgqmn~ns'kh; leLr lqfo/kkvksa ls ifjiw.kZ Fkhe vk/kkfjr O;kikfjd
dsUnz fodflr gksxk ,oa blls u dsoy O;kikfj;ksa dks ,d LFkku ij fcØh
dh lqfo/kk fey tk;sxh cfYd miHkksDrkvksa dks Hkh Hkou fuekZ.k ls lacaf/kr
leLr lkexzh ,d LFkku ij miyC/k gks ldsxh rFkk 'kgj ds vUn:uh
fgLls esa fLFkr ,sls leLr izdkj ds O;olk; gks bu O;olk; LFkyksa esa yk;k
tk ldsxkA blls Hkkjh okguksa ds vUn:uh {ks= esa ;krk;kr ncko dks de
djus esa ,d cgqr egRoiw.kZ miyfC/k izkIr gksxh o lkFk&lkFk Hkkjh okguksa ds
iznw"k.k o nq?kZVukvksa dh dkQh cMh leL;k ls futkr fey ldsxhA
(21 of 31)
[CW-4853/2003]
4- ;kstuk ds cgqmn~ns'kh; Lo:i] HkO;rk] vkd"kZ.k o lqfo/kkvksa dks ns[krs gq,
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The Notification under Section 4 of the Act of 1894 was
issued to acquire additional land. The petitioners have questioned
the requirement of land though it is not subject for judicial review
unless a case is made out. The requirement of the land for public
purposes has been assessed by the respondents and declaration
under Section 6 of the Act of 1894 is considered to be exclusive
evidence of public purpose in view of the judgment of the Apex
Court in the case of Bhagat Singh Vs. State of U.P. & Ors.,
reported in (1999) 2 SCC 384.
Many issues have been raised without submitting
objections under Section 5A of the Act of 1894 within a period of
30 days from the date of issuance of Notification under Section 4
of the Act of 1894. It is moreso when declaration under Section 6
of the Act of 1894 read with Section 17 was issued much
(22 of 31)
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subsequent to the expiry of period of 30 days of the notification
under section 4 of the Act of 1894. The respondents have yet
questioned the Notification under Section 17(4) dispensing with
Section 5A of the Act of 1894 though they did not submit
objections. It is also submitted that acquired land can be used for
different public purpose than it was acquired as has been held by
the Apex in the case of Bhagat Singh (supra).
Learned counsel for respondents further submits that
violation of Section 3(f)(vi)(vii) has been alleged under
misconceived motions. Section 3(f) of the Act of 1894 is not
exhaustive of public purpose, rather, it is only illustrative. The
development programme was made and it is after application of
mind that the acquisition of the land was approved. In case, the
petitioners were aggrieved by the alleged violation of Section 3(f)
(vi)(vii), they could have raised objections under Section 5A of the
Act of 1894. Section 5A of the Act of 1894 was dispensed with
much subsequent to the period of 30 days thus a case of waiver of
right under Section 5A of the Act of 1894 is made out. The
petitioners cannot raise issues which were available after issuance
of Notification under Section 4 of the Act of 1894 when they fail to
submit objection under Section 5A of the Act of 1894.
The issue of waiver in absence of objections under
Section 5A of the Act of 1894 was considered by the Apex Court
in the case of Delhi Administration Vs. Gurdip Singh Uban & Ors.
(23 of 31)
[CW-4853/2003]
etc., reported in AIR 2000 SC 3737. It is otherwise a fact that
scheme for shifting Loha Mandi was notified way back in the year
1984 but could not be given effect. The existence of Loha Mandi in
thickly populated area created huge difficulty, rather, became
chronic thus urgent steps were required to establish centralised
market outside the city area. The existence of the market area in
thickly populated city was even causing traffic hazards with the
entry of heavy vehicles. It became a threat to the environment
also. It is for the public purpose that urgency clause was invoked.
The Notification under Section 17(1) has been
challenged showing that there was no urgency in the matter. It is
not in reference to malafide or colourable exercise of power. In
view of the above, it should not be interfered in the light of the
judgments of the Apex Court in the case of Chameli Singh & Ors.
Vs. State of U.P. & Anr., reported in (1996) 2 SCC 549 as well as
Union of India & Ors. Vs. Praveen Gupta & Ors., reported in
(1997) 9 SCC 78 and in the case of Bhagat Singh (supra). It is
also a fact that award was also passed on 27 th September, 2005
and has not been challenged in any of the petitions. After passing
of the award, issue in reference to Section 17 does not remain of
much significance. It is when petitioners did not submit objections
under Section 5A of the Act of 1894 though it was dispensed with
by a Notification under Section 17(4) of the Act of 1894 but much
after 30 days of the notification under Section 4 of the Act of
1894. After passing the award and possession of the land, it
(24 of 31)
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vested in the Government free from all encumbrances. The
compensation arising out of the acquisition was also deposited
followed by allotment of plots under the scheme, however,
development of land could not take place due to interim order
passed by this court.
The challenge to the acquisition has been made even in
reference to Section 90B of the Act. It is without realising that an
order under Section 90B of the Act of 1956 does not affect the
acquisition. The acquisition of land can be made irrespective of
nature of land. Section 54B of the Act of 1982 otherwise does not
give absolute right to the khatedars or others for allotment of
land, rather, it is subject to various conditions. The regularisation
of land cannot be claimed as a matter of right. The petitioners
having failed to challenge the award thus they have lost their
rights to pursue litigation. In view of the aforesaid, prayer is made
to dismiss the writ petitions.
I have considered rival submissions of the parties and
perused the record.
It is a case where acquisition of land for Loha Mandi
was made in three phases. The respondents took a decision to
shift even 'bijli traders' therein. It is submitted that on 31.1.2003,
the decision was taken to shift building material traders to make
(25 of 31)
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a specialised market. It was to avoid entry of heavy vehicles in the
city and would otherwise give facility to purchase building material
at one place. The decision therein was taken after proper
consideration. The land sought to be acquired for one purpose can
be used for other public purpose as has been held by the Apex
Court in the case of "Union of India & ors versus Jaswant Rai
Kochhar & ors", AIR 1996 SC 1352.
Main market area in thickly populated city area may
cause nuisance as it involves transportation of material affecting
traffic and environment. With the development of city areas, it is
always proper to keep market of heavy material away from the
main city. It is to avoid traffic congestion and accidents as a
consequence thereof. It even avoids environmental threat to the
congested city area. The decision of the respondents to shift
different Mandies of building material and 'bijli' material was well
conceived.
The petitioners have challenged the notification under
section 17(1) and 17(4) of the Act of 1894. It is mainly on the
ground that no urgency was existing to invoke section 17 of the
Act. It otherwise took away their valuable right to submit
objections under section 5A of the Act of 1894.
(26 of 31)
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The allegation of dispensing with the objection under
section 5A of the Act has been raised on issuance of notification
under section 17(4). It is a case where petitioners failed to submit
objections under section 5A of the Act of 1894 despite availability
of opportunity before issuance of notification under section 17. It
is for the reason that notification under Section 17(4) was issued
much subsequent to the period of 30 days for filing of objection
under Section 5A of the Act. Section 5A is quoted hereunder for
ready reference -
"5A Hearing of objections. (1) Any person interested
in any land which has been notified under section 4,
sub-section (1), as being needed or likely to be
needed for a public purpose or for a Company may,
[within thirty days from the date of the publication of
the notification], object to the acquisition of the land
or of any land in the locality, as the case may be."
The provision quoted above provides an opportunity to
the person interested to submit objection/s within thirty days of
issuance of the notification under section 4 of the Act of 1894.
It could not be disputed by the petitioners that after
issuance of notification under section 4, subsequent notification
under section 6 read with section 17 and even 17(4) of the Act
was much subsequent to the period of thirty days. The petitioners
(27 of 31)
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did not raise objections under section 5A despite availability of an
opportunity for it.
The dispensing with section 5A could have been a
ground if petitioners would have submitted objections within 30
days as the period aforesaid was available. Having failed to submit
objections, argument in reference to the notification under section
17(4) remains for the sake of it. It rather becomes a case of
waiver. If the notification under section 17(4) is even set aside, it
will not change the complexion of the case in absence of objection
under section 5A of the Act within a period of 30 days.
The issue of waiver was considered by the Apex Court
in the case of Delhi Administration Vs. Gurdip Singh Uban & Ors.
(supra). In view of above, notification under section 17(4) of the
Act has not affected the petitioners and even setting aside of the
aforesaid notification is not going to change outcome of the
litigation.
The other issue is related to the notification under
section 17(1) of the Act of 1894. It is submitted that no urgency
was existing so as to invoke the aforesaid provision thus
notification under section 17(1) of the Act has been questioned.
(28 of 31)
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Learned counsel for respondents have given reasons to
invoke urgency clause. It was taking into consideration that
existence of "Mandies" of building materials in the city has caused
traffic conjection resulting in accidents and a threat to the
environment. On account of movement of heavy vehicle in the
city, it became a traffic hazard. Taking into consideration urgent
need to shift different "Mandies", Section 17(1) was invoked. The
Apex Court has considered similar issue when urgency clause was
invoked to shift Mandi and it was held to be justified in the case of
Bhagat Singh (supra).
The issue needs further elaboration because after the
notification under section 17(1), even an award was passed. No
objections under Section 5A of the Act of 1894 were filed and
despite the award, during the pendency of the writ, it has not
been challenged by seeking an amendment. After passing of the
award, sanctity does not remain to the notification under section
17(1) of the Act. On passing of the award, acquisition gets
completed. If the notification under Section 17(1) is interfered
with then also award would remain.
The compensation has already been deposited as stated
by the respondents thus the issue in reference to section 17(1)
and 17(4) apart from section 5A of the Act of 1894 remains of no
consequence.
(29 of 31)
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In the light of the finding given above, the judgment
referred by the petitioners need not to be discussed as they are
not applicable to the facts of this case. It is, no doubt, true that
section 5A of the Act of 1894 gives a valuable right to a party but
having failed to avail the opportunity despite availability, petitioner
cannot raise the issue.
The petitioners have even challenged the decision of
the government to establish Loha Mandi and other market area of
building material. The argument aforesaid is for the sake of it. The
judicial review in such cases is quite limited. Whether one market
of electricity goods is enough to cater the need of the city etc is
within the domain of the administration. In absence of ulterior
motive or colourable exercise, court cannot make interference in
the administrative and policy decisions of the government.
The last contention in few writ petitions is in reference
to the order under section 90B of the Act of 1956. The order under
section 90B was not challenged by the respondents thus
acquisition of land has been questioned. The issue aforesaid has
been raised without referring any provision which bar acquisition
of land for which an order under section 90B has been passed.
The acquisition of land can be made for public purpose and it is
not subjected to acquisition of agriculture land alone.
(30 of 31)
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The Act of 1894 does not restrict acquisition of land
other than agriculture so as to question the acquisition of land for
which an order under section 90B of the Act of 1956 has been
passed. In view of the above, the challenge to the acquisition in
reference to the order under section 90B of the Act of 1956 cannot
be accepted.
Reference of section 54 of the JDA Act, 1982 has been
given to seek allotment/ regularisation of the acquired land for
which an order under section 90B of the Act of 1956 was passed.
The claim of allotment under section 54 of the Act of 1982 can be
made but it cannot be in all circumstances. When the land for
which an order under section 90B of the Act of 1956 was passed
has been acquired, it is not necessary to be regularised.
The allegation of non-compliance of section 3(f) of the
Act of 1894 has also been made. It defines public purpose. It is
stated that compliance of section 3(f) (vi) and (vii) has not been
made. In the instant case, land has been acquired for public
purpose as defined under section 3(f) of the Act of 1894. The
Jaipur Development Authority falls in the definition of "local
authority" and the acquisition of land is on the approval of the
respondents thus there exist no violation of section 3(f) (vi) and
(vii) of the Act of 1894.
(31 of 31)
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In view of the discussion made above, I do not find
substance in the arguments of learned counsel for the petitioners,
thus is not necessary to deal with the preliminary objections
raised by learned counsel for the respondents.
All the writ petitions are dismissed accordingly with no order as to costs.
A copy of this judgment be placed in each connected file.
(M.N. BHANDARI)J. bnsharma/frbohra