Madhya Pradesh High Court
Indore Development Authority vs Burhani Grih Nirman Sahakari & Ors. on 28 August, 2014
Author: M.C. Garg
Bench: M.C. Garg
1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON.SHRI JUSTICE SHANTANU KEMKAR
HON.SHRI JUSTICE M.C.GARG.JJ.
WRIT APPEAL No. 873/2008
Indore Development Authority
Vs.
Burhani Grih Nirman Sahakari Sansthan Maryadit and 3 others
Shri Shekhar Bhargava, learned senior counsel with Shri
Sudarshan Joshi, learned counsel for the appellant.
Shri A.S.Kutumbale, learned senior counsel with Ms. Vandana
Kasrekar, learned counsel for Burhani Grih Nirman Sahakari Sanstha.
Ms. Mini Ravindran, learned Dy.Govt. Advocate for
respondent/State.
Shri A.K.Sethi, learned senior counsel with Shri Rishab Gupta,
Shri K.L.Hardia and Shri S.P.Joshi, learned counsel for the
respondent.
ORDER
(Passed on this 28th day of August, 2014) Per M.C. Garg, J.
This order shall dispose of the aforesaid writ appeal as well as other 33 connected writ appeals being W.A.Nos.850, 851,852, 853, 854, 855, 856,857,858, 859, 860, 861, 862, 863, 864, 865, 866, 867, 868, 869, 870, 874, 875, 876, 877, 878, 879, 880, 881, 882, 883, 884 2 and 902 of 2008, as the facts in all these cases are identical and arises out of common order dated 10.12.1998. For the sake of convenience, the facts are taken from W.A.No.873/2008.
2. These writ appeals have been filed by the IDA aggrieved of the common order dated 10.12.1998 delivered by the learned Single Judge whereby the learned Single Judge decided all the 37 writ petitions filed by the respondents against finalization of the scheme under Section 50 of the Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short referred to as the Adhiniyam) and subsequent land acquisition proceedings which have been undertaken by the State of M.P. under Section 4 and 6 of the Land Acquisition Act, 1894 (for short referred to as L.A.Act).
3. According to the respondents, who were writ petitioners, the challenge to the aforesaid proceedings were two fold i.e.
(i) It was the submission that since the Scheme formed by the appellant under Section 50(7) of the Adhiniyam was not implemented within three years, it stood lapsed, by virtue of Section 54 of the Adhiniyam.
(ii) The notification issued under Section 6 was not in accordance with law inasmuch as the objections invited under Section 5-A were not decided by the Competent Authority. There was also a plea of hostile discrimination inasmuch various parcels of lands were released from acquisition indicriminately.
3
4. In some of the writ petitions, proceedings were filed prior to publication of the award and in other proceedings the petitioners have filed the petition after the award. The writ petition filed by the first respondent was registered as M.P.No.268/1991 and it is this order in which the impugned order has been delivered.
5. The writ petitions were heard together and were allowed by the learned Single Judge on 10/12/1998. Vide impugned order, the learned Single Judge quashed the Scheme framed by the I.D.A. as well as the land acquisition proceedings initiated by the State Government mainly on 3 grounds namely:-
(i) The objections invited under Section 5-A of the L.A.Act were not decided by the Competent Authority i.e. State Government.
(ii) There was hostile discrimination with the respondents by the appellant and the State of Madhya Pradesh inasmuch as the various parcels of land owned by several other persons and the societies forming part of the same scheme were released by the appellant violating the fundamental rights of the respondents as guaranteed under Article 14 of the Constitution of India.
(iii) That in view of Section 54 of the Adhiniyam, the Scheme lapsed as it was not implemented within three years of the date of its publication as provided under Section 54 of the Adhiniyam.
6. Before us it has also been submitted by the respondents that a New Act has come into operation known as The Right to Fair 4 Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 w.e.f. 1/1/2014. This Act repeals the earlier Land Acquisition Act, 1894.
As per section 24(2) of the new Act, all land acquisition proceedings initiated under the repealed Act of 1984 in which awards were passed five years or more prior to commencement of the new Act and that the physical possession of the land has not been taken or the compensation has not been paid, the land acquisition proceedings under the old Act shall be deemed to have lapsed. In the present case, the award was passed in the year 1991 and the physical possession of the land is admittedly with the answering respondent and that no compensation has been paid or deposited by the I.D.A. or the State Government. In such circumstances, all the land acquisition proceeding initiated under that old Act stands repealed in view of the judgment of the Apex Court in case of Union of India vs. Shivraj and others reported in 2014 AIR SCWN 3388.
7. For the sake of reference, the provisions of Section 24(2) of the New Act is reproduced hereunder:-
"24. (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, -
a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
b) Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, 5 as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid he said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act."
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
This argument has been rebutted on behalf of the appellant on the plea that in these matters there were stay orders passed by the Writ Court almost in every case prohibiting taking of possession by the appellant and therefore this new Act would be of no help to the case of the appellant. As far as this aspect of the matter, we shall deal with the same after disposing of the grounds taken in the appeal by the appellant.
8. In these appeals, the appellants have submitted that the judgment given by the learned Single Judge is not tenable in law as well as on facts. It is stated that for the purpose of framing Scheme No.97 the IDA had passed a resolution dated 13.03.1981, under 6 Section 50 (1) of the Adhiniyam. After completion of various formalities as required under the Adhiniyam, the final declaration of the scheme under Section 50(7) of the said Adhiniyam was published on 01.05.1984. Thus, on the publication of the Scheme under Section 50(7) of the Adhiniyam, it became final. After the said declaration the IDA set about trying to obtain possession of as much land as possible by agreement. Since it is never possible to acquire all lands by mutual consent or agreement, the IDA approached the State Government for compulsorily acquiring the remaining land under provisions of the L.A.Act. i.e. the land available for acquisition for the Scheme after deducting therefrom the lands acquired by mutual consent, lands released from the Scheme and land belonging to the State Government. Thus, it is submitted that the appellants took effective steps for implementation of Scheme within three years of the publication of Scheme and as such it is not a case where Scheme would fail under Section 54 of the Adhiniyam.
9. It is also the case of the appellant that the objections under Section 5-A of the Act were invited, heard and considered by the Collector and a report was submitted to the appropriate Government. After following the due procedure prescribed under the L.A.Act and after recording the satisfaction that the land included in the scheme was required for public purposes, the State Government proceeded to issue the necessary declaration under Section 6 of the L.A.Act. Accordingly, the Collector who was and is an Ex-Officio Deputy 7 Secretary to the State Government of M.P., issued the necessary declaration under Section 6 of the Act in the name, and on behalf of the Government of Madhya Pradesh. The said declaration was published in the official gazette on 07.10.1988, in the local newspaper on 07.02.1989 and 10.02.1989 and by affixture at public places in the locality on 07.03.1980.
10. It is further submitted that after the above proceedings, the award was prepared by the Land Acquisition Officer on 02/03/1991 and was approved by the Collector on 04.03.91 and as per the requirement of Section 11 of the L.A.Act, the award was sent for approval to the Commissioner who approved the said award on 06.03.1991 and sent it back to the Collector. It was on 11.03.91 that the said award was declared. It has also been submitted by the appellants that the writ petitions were filed by the respondents from time to time. Some of the writ petition was filed even prior to issuance of notification under Section 6, whereas others were filed after delivery of the award. In these proceedings, the learned Single Judge has been pleased to pass interim orders in favour of the respondents restraining the appellant to take possession of the property sought to be acquired.
11. It is also stated that the impugned order disposing of the writ petitions together, it has been observed by the learned Single Judge that in so far as the process followed by the appellant and the State Government with respect to issuance of notification under Section 4 8 and 6 of the L.A.Act, the learned Single Judge in para 32 of the order has observed as under :-
"32. Thus, on consideration of the aforesaid judgments and on critical examination of the same, it is clear that the petition cannot be allowed on the ground of non-adherence of the respondents to the time Schedule as prescribed under the Act. Thus, this ground of the petitioner fails and, is, hereby negatived."
12. According the appellant, this observation takes away the objections of the respondent even on the question of hearing objections under Section 5-A of L.A.Act by the Collector.
According to the appellant there was also no hostile discrimination as held by the learned Single Judge in this case.
13. We have heard the learned counsel for the parties and have perused the record. The arguments have been rebutted on behalf of the respondents who have reiterated that on all the three grounds the acquisition of the Scheme published by the IDA as well as the acquisition proceedings undertaken by the State Government fails.
14. The appellant did not argue the matter when the case was called for hearing but filed written arguments. According to them, the observation made by the learned Single Judge regarding the scheme of the IDA having lapsed on the ground that it was not implemented by the IDA within three years from the date of finalization of the scheme and therefore it lapsed under Section 54 of the Adhiniyam is not 9 sustainable. It is the submission of the appellant that the observation of the learned Single Judge in this regard were without considering the totality of the aspects involved in the matter. In this regard, it is submitted that though the learned Single Judge has noticed the judgment of this Hon'ble Court reported in AIR 1991 MP 72 (Sanjay Gandhi Grih Nirman Sahakari Sanstha Vs. State of M.P.), it has been wrongly relied upon it to hold in favour of the writ petitioners. It is submitted that the said judgment is in favour of the appellants only and on the basis of the ratio of the said case, the learned Single Judge ought to have held in favour of the appellants only. They have relied upon the following passage i.e. "20. A Division Bench of this Court in the case of Laxmichand v. The Indore Development Authority, Indore (M.P. No. 390 of 1980 decided on 14-12-81) in which a similar argument was advanced that after the expiry of three years if the scheme is not implement ed it lapsed, has held that Section 54 does not appear to apply when substantial steps have been taken within three years to implement the scheme. The Court had also taken into consideration Sections 56, 57 and 58 of the Adhiniyam and has taken a view that the words 'fails to implement' would mean failure to take any substantial steps for the implementation of the scheme and if no such step is taken within three years the scheme will lapse. If substantial steps have been taken within three years though the scheme is not fully implemented within that period the scheme would not lapse and proceedings for acquisition of land under the scheme is a substantial step towards its implementation. We are in respectful agreement with the aforesaid view taken by a Division Bench of this Court and hold that the word 'implement' occurring in Section 54 of the Adhiniyam cannot be construed to 10 mean that even if a substantial step has been taken by the authority towards the implementation of the scheme then also the scheme shall lapse after the expiry of three years because of its non-completion within that period."
15. It has been submitted that even though it was true that the appellant wrote a letter to the State Government four days prior to the expiry of three years it acquired the land, it would still constitute a substantial step and this step having been taken within three years of the finalization of the Scheme under Section 50 (7) of the Adhiniyam, it cannot be said that the appellant had not taken the substantial step. It is further submitted that while holding as above the learned Single Judge has not only wrongly applied the principle of 'substantial steps' but has also failed to appreciate the true facts and to also notice the other relevant provisions of the Adhiniyam. It is submitted that though the above letter written by the appellant by itself constituted a substantial step, the learned Single Judge failed to notice not only the other steps taken by it (i.e.Appellant)but also the relevant provisions of the Adhiniyam having a bearing on the above question. It is submitted that as required by the Adhiniyam, the appellant's aforesaid letter had been preceded by efforts made for acquiring the lands in question by the process of mutual agreement. The appellant submits that though the learned Single Judge noticed the above fact, but he brushed aside the same on the irrelevant ground/basis that the said effort "did not create any bar to getting the scheme implemented under the Adhiniyam." The appellant submits that in not considering as 11 substantial steps the appellant's efforts to acquire the lands for scheme no.97 by mutual agreement as followed by the appellant's aforesaid letter to the State Government to compulsorily acquire the said lands under the L.A.Act the Hon'ble Single Judge erred both factually and legally. Infact, had the Hon'ble Single Judge considered the other relevant provisions (particularly section 56) of the Adhiniyam, it would have been apparent to him that after publication of the final scheme under Section 50 of the Adhiniyam, a statutory period of three years is available to the Authority to acquire the lands in question by agreement and it is only on such failure, that the authority is required to approach the State Government for compulsory acquisition of such lands under the L.A.Act. It is submitted that since the law itself provides for a period of three years for acquiring lands for or scheme by mutual agreement it could not have been held by the learned Single Judge that the request made by the appellant to the State Government to acquire the said lands under the L.A.Act (though made within the period prescribed by the statute) yet did not constitute a substantial step only because the said request had been made just 4 days before the said prescribed period was to expire.
16. Coming to the ground of hostile discrimination it has been argued that the said ground was also not available to the writ petitioners inasmuch as in some cases, the land have been released from acquisition whereas in other cases, it has not been so done. On this issue it is the case of the appellant that neither the factual nor the 12 legal basis was laid out in the petition for seeking quashment of the scheme on the said ground. It is submitted that merely because the lands belonging to some other persons were released from the scheme would not constitute hostile discrimination. It is submitted that neither the factual nor the legal basis was laid out in the petition for seeking quashment of the scheme on the said ground. It is submitted that the petitioners constitute an entirely different class from those persons whose lands were released from the scheme by the State Government and/or its instrumentalities in exercise of their statutory power under the Adhiniyam. The appellant submits that while it is not even clear from the petition averments whether the respondents at all sought release of their land and under which provision or provisions of the Adhiniyam, the appellant had clearly shown that most, if not all, the decisions to release the lands from the scheme had been taken by the State Government in exercise of its statutory powers, particularly under Section 51 and 52 of the Adhiniyam. Since such decisions taken by the State Government in exercise of its statutory powers are binding on the Authority, it is apparent that no question of the petitioner respondents being subjected to hostile discrimination arose in the facts and circumstances of the cases. Besides, the petitioner-respondents were also not able to show that they belonged to the same class as the persons whose lands had been released from the scheme. Infact it does not appear that all or anyone of the petitioner respondents had even sought release of his/her/their lands from the scheme and that such release was refused. That no such request was made or refused 13 is also evident from the fact that the alleged refusal to release was not challenged in any of the petitions.
17. It is also submitted by the appellant that in some of the areas residential colonies had already been developed and hence releasing colonies had already been developed and hence releasing colonies had already been developed and hence releasing them was the only legal and practical solution, more so as the scheme (i.e.scheme no.97) for which the land would have been acquired provided for the development of the land for residential use only. It would also not be out of place to mention here that in all the petitions which have been decided by the common order, the land involved fell in either Part II or Part IV of the Scheme No.97, the main object of the said parts being to develop the said lands into residential plots. It may also be stated that since some of the lands which were initially included for residential use in scheme no.97 could not have been put to the said use as under the Master Plan the same had been earmarked for their uses, like agriculture, regional park, industry etc., the appellant had no choice but to exclude such lands from the scheme. It is submitted that the said exclusion has also not adversely impacted the implementation of Scheme no.97. Similarly, the learned Single Judge also failed to notice that the State Government had as a matter of its policy, also released the lands belonging to such cooperative societies which had either developed or started development of a colony or had acquired the title of the land or had obtained exemption under Section 20 of the Urban 14 Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Urban Ceiling Act.) before publication of the final scheme under Section 50(7) of the Adhiniyam. However, so far as the respondent, Burhani Grih Nirman Sahakari Sanstha Maryadit is concerned, it cannot even be treated as a society belonging to the same class. It is submitted that the exemption under Section 20 of the Urban Ceiling Act was granted to Burhani Grih Nirman Sahakari Sanstha Maryadit on 30.09.1988 only, i.e. much after the final declaration of the scheme under Section 50(7) of the Adhiniyam and also after the publication of notification u/s Section 4 of the L.A.Act. It may also be mentioned here that the Burhani Grih Nirman Sahakari Sanstha Maryadit had purchased the land by a registered sale deed on 3.10.1988 only, i.e after publication of notification under Section 4 of the L.A.Act. Infact as per the law laid down by the Hon'ble Apex Court, such a transfer/sale is void. However, be that as it may, it is submitted that being in a separate class, no case of hostile discrimination was made out by the Burhani Grih Nirman Sahakari Sanstha Maryadit. Besides, the learned Single Judge also failed to notice the conduct of the Burhani Grih Nirman Sahakari Sanstha Maryadit and 3 others. It is submitted that the same clearly dis entitled them to any relief on the ground of hostile discrimination or on such other similar constitutional ground. It is submitted that since Burhani Grih Nirman Shahakari Sanstha had entered into the agreement for purchase of land much after the publication of the final scheme under Section 50(7) of the Adhiniyam, it was not even entitled to prefer the writ petition. The petition filed by 15 respondent no.1 was not at all maintainable as the respondent no.1 Burhani Grih Nirman Sahakari Sanstha Maryadit had no locus standi to file the present case as held in the case of Dashmesh Enterprises Vs. State of M.P. and others reported in 2006 (4) MPLJ 553, wherein it was held that if at the time of publication of final declaration, the agreement was not in existence, the petitioner would have no locus standi to challenge the scheme. The appellant's above submission is also strengthened by another judgment delivered by Hon'ble Apex Court in the case of Kashta Niwarak Grih Nirman Sahakari Sanstha Vs. President, Indore Development Authority and reported in 2006 (2) Vidhi Bhaskar. Copies of the aforesaid judgments alongwith the copy of the application with which the same were filed are already on the record.
18. Regarding the order of the learned Single Judge holding that the objections were not decided by the L.A.Act it is submitted that in reaching to the above conclusion the learned Single Judge has not only taken a very hyper technical and strict view of the law (including the orders/notifications by which the power was delegated) but it has also erred on merits and decided the said point wrongly. It has been inter alia held by the Hon'ble Single Judge that since the notification / order purporting to delegate power of the State Government under section 5-A of the LA Act on the Collector, makes no mention of the said section, the said power cannot be treated as having been delegated to him. According to the Hon'ble Single Judge, 16 the power which was delegated to the Collector by the Hon'ble Minister's order was the power under section 4, 5, 6 and 17 of the LA Act and not the power under section 5-A of the said Act. Accordingly, he could not have exercised the power of the State Government under section 5-A of the AL Act. The appellant submits that the aforesaid view / interpretation of the Minister's order takes an unduly narrow and strict view of the above order. It is submitted that reference to section 5 of the LA Act in the Minster's order would need to be read as reference to section 5-A of the LA Act so as to give the said order its intended meaning and effect. It is submitted that reference to section 5 has to be read as reference to section 5-A of the LA Act, as no question of delegating any power under section 5 arises. It is submitted that the said section deals with "Payment of Damages" and does not provided for delegation of powers. Therefore, section 5 in the Minister's order being clearly a typographical mistake, the same ought to be read as Section 5-A only. Similarly, the learned Single Judge has also wrongly held in the context of exercise of the State Government's power by the Collector that a decision of the Appropriate Government can be said to be final only when the same has been taken by the Appropriate Government and then communicated to the affected party. As regards the learned Single Judge's observation that the decision under section 5-A should also have been communicated to the affected party in order that it may become final, it is submitted that the State Government's decision under section 5-A of the Act is not required to be communicated to the 17 affected party or to anyone else. It is submitted that the only requirement for the State Government to arrive at a decision under section 5-A of the LA Act is that it ought to apply its mind to the recommendations of the Collector and the record of the proceedings. It is further submitted that it is the report under section 5-A of the LA Act which forms the basis for the State Government's declaration under section 6 of the said Act. Thus, from the above discussion, it is also clear that the learned Single Judge has erred in holding that Section 5- A and Section 6 of the Act cannot be read conjointly. Infact, it is an axiomatic principle of statutory interpretation that the statute has to be read as a whole and the sections have to be read harmoniously.
19. We have also perused the written arguments filed by both sides. As observed earlier the learned Single Judge disposed of the writ petitions and quashed the proceedings undertaken by the appellant as well as the State Government interalia by observing:-
(i) That there was no proper delegation of powers to the Collector with regard to Section 5-A of the L.A.Act in conformity with the provisions of Article 166 of the Constitution of India.
(ii) That the scheme had lapsed under Section 54 of the Adhiniyam inasmuch as the appellant had failed to implement the same within the prescribed period of three years.
Admittedly, in this case the appellant wrote a letter to the State Government for acquiring the land just before 4 days before expiry of three years from the date of finalization of the Scheme which they 18 considered having taken substantial step in the matter, but according to the learned Single Judge it is not so.
(iii) That the scheme stood vitiated by reason of violation of the petitioners' fundamental right under Article 14 of the Constitution of India inasmuch as they had been subjected to hostile discrimination in the matter of release of lands of other landowners from the Scheme. According to the petitioners, the release of land of some of the landowners from the Scheme amounted to hostile discrimination against them.
20. The learned Single Judge has dealt with all the three issues separately and elaborately. The first ground on which the land acquisition proceedings were quashed is about the jurisdiction of the Collector to hear objections under section 5-A of the Land Acquisition Act, 1894. The said section 5-A of the Land Acquisition Act reads as under:-
"5-A 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;
(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard [in person or by any person authorised by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, [either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of 19 different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of the [appropriate Government] on the objections shall be final. (3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."
21. As per the reading of the said section, it clear that the objections are to be decided by the Government and the Collector had no jurisdiction to decide the objections under section 5-A. In the present case, the Collector himself has decided the objections instead of sending the report to the appropriate authority. The learned judge in para 44 of the judgment held as under :-
"There is no difficulty with regard to Rules of Business, as framed by the State Government and the Business Allocation Rules. They have been framed for effective functioning of the State Government. There is also no dispute to the fact that the provisions of Article 166 of the Constitution are directory, but, as has been mentioned above, there is no delegation at all with regard to section 5-A of the Act to the Collector. Thus, the proceeding of the land acquisition would stand totally vitiated."
22. It is pertinent to mention here that the State Government had not preferred any appeal against the quashing of the proceedings under Land Acquisition Act and therefore that part of the judgment in having quashed the land acquisition proceedings attains finality between the parties, whereas there was no valid land acquisition proceedings. The appeal filed by the I.D.A. becomes without any substance and 20 deserves to be dismissed only on this short ground.
23. The second ground on which the writ petition has been allowed is the ground of hostile discrimination. In this case, the various land owned by several other persons and the Society's forming part of the same Scheme were released by the I.D.A., which amounts to hostile discrimination against the petition and violates fundamental right of the respondents guaranteed under Article 14 of the Constitution of India. A bare reading of para 47 of the impugned order clearly goes to show that as many as 261.796 of the lands were released by respondents with the direction of the State Government. This will not justify releasing the land of some and not releasing the land of others and would certainly constitute the ground of hostile discrimination. The said paragraph reads as under:-
47. Counsel for respondent/IDA has given following details with regard to the lands which have been released either by State Government or by I.D.A., eversince, the Scheme was framed in the year, 1981 till date.
(i) The total area of the Scheme No.97 consisting of Pt.I,Pt.II,Pt.III and Pt.IV comes to 562.145 h
(ii) Excluding the lands of Pt.I and Pt.III, as there are no petitions with regard to these two parts 30.717
--------------
(iii) Balance land available with regard to Pt.II and Pt.IV. 531.428
(iv) Total lands released from 1981 upto date 261.796
-------------
Balance 269.532
------------
The aforesaid data would show that the
21
total of 261.796 hectares have been released by the respondents from time to time.
Taking note of the quantum of the land released, the learned Single Judge thus observed as under:-
"49. Thus, it is clear that a huge and big chunk of land out of the total land sought to be acquired by the respondents has been released. The aforesaid data is indicative of the fact that lands have been released in favour of various persons and Societies. This alone is sufficient to hold that there has been discrimination against the petitioner. There is nothing on record to show as to how such a discrimination can be said to be justified by the Respondents. Thus, on the touch stone of Art.14 of the Constitution, I hold that such an action of the Respondents amounts to hostile discrimination against the petitioner.
50. The guarantee of equal protection embraces the entire realm of 'State action'. It extends not only when an individual is discriminated against in the matter of exercise of his rights or in the matter of imposing liabilities upon him but also in the matter of granting privileges. In all cases, principle is the same, that there should be no discrimination between one person an another, if both are similarly situated. The action of the State must not be arbitrary but must be based on valid principle, which itself must not be irrational or discriminatory. It is too well settled that like should be treated alike.
51. It may also be mentioned here, that it is not the case of respondents that despite release of huge land admeasuring 261.796 hectares, the respondents shall still be in a position to implement the scheme as it is. Had this been the case of the respondents, even, then, the Court would have thought twice before holding the respondents guilty of discrimination. Thus, on this ground, I hold that respondents are not justified in not releasing the lands of the petitioner. In fact, 22 the purpose for which the scheme was framed has been defeated to a very great extent. If the scheme itself fails, the question of acquisition for implementation of the scheme does not arise."
So on this ground also, it has been observed that whether before the learned Single Judge the scheme fails.
24. On the third ground the learned Single Judge had taken note of various dates which are relevant for the purpose of leading to a conclusion regarding lapse of scheme as per Section 54 of the L.A.Act, which reads as under:-
"54. Lapse of Scheme- If the Town and Country Development Authority fails to implement the town development scheme within a period of three years from the date of publication of the final scheme under Section 50 it shall, on the expiration of the said period of three years, lapse".
In paragraph 53 of the order the learned Single Judge held as under:-
"53. Final publication of the Scheme under S.50(7) of the Adhiniyam was made on 1.5.1984. It was published in the Official Gazette on 8.6.1984. Thus, the period of 3 years has to be computed from this date. Letter to the Collector was sent by respondent no.2 for the first time on 4.6.1987 i.e. just four days before expiry of period of limitation."
25. It was held that as per section 54, if the development authority fails to implement the scheme framed u/s 50 within a period of three years from the date of publication of the final scheme u/s 50 it shall lapse after completion of three years from the date of notification. In 23 this present case, the scheme was finally published u/s 50(7) of the said Adhiniyam on 01/05/1984 which was published in official gazette on 08/06/1984. Thus, it was incumbent for the appellant to implement the scheme within period of 3 years i.e. before 04/06/1987 but admittedly the Scheme was not implemented during that period nor any substantial steps towards implementation of the scheme has been taken by the present appellant. The Single Judge in such circumstances has relied on the judgment of the Supreme Court in case of Sanjay Gandhi Grah Nirman Sahakari Sanstha Maryadit vs. State of M.P. and others reported in AIR 1991 MP 72 wherein the Apex Court has held that if the development authority fails to implement the scheme or fails to take substantial steps towards implementation of scheme within a period of three years from the date of publication of final notification, the land acquisition proceedings would lapse. Another judgment on the same point delivered is in case of Raipur Development Authority Vs. Upendra Nath reported in 1987 (2) MPWN Short Note - 15.
26. In para 61 of the impugned judgment, the learned Judge has given a categoric finding that the appellant has failed to demonstrate that any substantial steps for implementation of the scheme was taken within three years. Paragraphs 61 and 62 reads as under:
"61. Writing a letter to the Collector, just four days before the expiry of period of limitation, would not clothe the IDA to contend that substantial steps were taken to implement the Scheme. Such type of approach and conduct of the 24 Development Authority is likely to defeat the purpose of the Scheme. In some big Schemes, the same may not be completed, even within a period of 10 years, but, unless the Development Authority has taken substantial and constructive steps to implement the same, the effect of this provision would be that the Scheme shall stand lapsed.
62. Thus, the irresistible conclusion in the matter is that IDA has failed to implement the Scheme within a period of three years from the date of final publication. Thus, on this ground also, the Scheme lapse and stands vitiated."
27. In view of the aforesaid, the learned Single Judge finally observed as under:-
"64. Thus, looking it from all angles, in my considered opinion, the Scheme would lapse on account of not taking of substantial steps to get the same implemented within a period of three years."
28. It is true that while the learned Single Judge has held that except for technical irregularity, notification under Section 4 and 6 of the L.A.Act awarded cannot be rendered invalid, the learned Single Judge has very specifically observed that four steps are required to be contemplated in exercising powers under Section 5-A of the Act i.e.:-
"(i) Objections are to be invited by the land owners or persons interested in the land sought to be acquired. The same are to be filed before the Collector;
(ii) Collector has, then, to give notice of hearing and to hear all of them, who have preferred objections, to make further inquiry as he may deem fit;
(iii) To make a report to the State Government, mentioning therein his 25 recommendations to the acquisition and;
(iv) The Collector has, then, to submit his report alongwith his record of proceedings for the decision of the State Government. The decision of the State Government shall, then, be final;"
29. Learned Single Judge has also taken note of the judgment of Hon'ble Supreme Court in the case of Gulabrao Keshavrao Patil Vs. State of Gujarat reported in (1996) 2 SCC 26 wherein the scope of Article 166 of the Constitution of India has also been considered. Paragraphs 16,17 and 18 of the aforesaid judgment reads as under:-
16. In Kedar Nath Bahl Vs. State of Punjab [AIR 1979 SC 220] a Bench of three Judges held that expression of the order in the name of the Governor as required by Article 166 of the Constitution and communication thereof to the party affected thereby are conditions precedent for the order to bind the Government.
It that case the order though initially was made by the Minister, the order of confirmation was cancelled by the Chief Minister before it was communicated. This Court upheld the order to be legal.
17. The same view was reiterated in State of Kerala Vs. A.Lakshmikutty [AIR 1987 SC 331]. It would thus be clear that before an order or action can bind the Government it must be drawn in the name of the Governor as envisaged in Article 166 [1] and [2] read with the Business Rules and must be communicated to the affected person. Until then, the action of the Government is not final. Before it is duly done, Chief Minister has power to call for any file and would have it re-examined and decision taken.
18. It would thus be seen that the decision of the Revenue Minister on July 6, 1973 is not final because the Urban Development Department did not accept or agree to the decision taken by the Minister for Revenue. As stated earlier, when the matter was brought by the Ministry of Urban Development and Housing Department to the notice of the Chief Minister, who holds ultimate responsibility and duty to 26 report to the Governor and accountable to the people, the Chief Minister, in light of instruction 10, should place the decision necessarily before the Council or the Cabinet, as the case may be, and then may be decided by the Chief Minister. It is seen that no decision has been taken by the Chief Minister under instruction 10. Therefore, under Section 5-A(2), no decision was taken to proceed further under Section 6 or to drop the acquisition proceedings. The High Court, therefore, was right in rejecting the writ petition as being not proper for interference.
30. Thus, the aforesaid discussion had by the learned Single Judge very clearly goes to show that in the present case the objections under Section 5-A of the L.A.Act which is essentially to be called for after issuance of notification under Section 4 were neither decided by the Competent Authority nor communicated, the issuance of notification under Section 6 cannot be held valid. This takes away the entire land acquisition proceedings and require quashing of the notification issued.
31. Coming to the issue of hostile discrimination by the appellant in having released some portion of the property sought to be acquired in exclusion of the other. In this regard details were supplied by the respondents with respect to the lands which have been excluded and deleted from the purview of Scheme. In so far as the allegations made by the respondents, the appellant even though denied the same, but before the learned Single Judge on 2.09.1994 admitted that the land of number of Societies and individuals have been deleted from the operation of the scheme.
32. We have gone through the record and the rival contentions of 27 the learned counsel for the parties. We find that the learned Single Judge has discussed all the three issues raised by the respondents elaborately and passed a speaking order.
33. Having considered the submission of both the sides and having perused the record we find no infirmity in the approach of the learned Single Judge and consequently, dismiss the appeals.
34. One more point which was discussed in favour of the respondent was the factum of coming into force of the New Act in the form of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. On this issue it is submitted by the appellant that the said objection is entirely misconceived and misplaced as Section 24(2) would have no application to the land acquisition proceedings in question. As is apparent from the very opening words of sub-section (2) of the said provision, the applicability thereof is postulated on the existence of a valid award made 5 years on more prior to the commencement of the new Act. It is submitted that in the present matters no such award is in existence as the same was specifically quashed by the learned Single Judge in para 67 of the impugned judgment. Infact, should this Hon'ble Court allow the appellant's appeal, the acquisition of land for scheme no.97 would need to be proceeded with as provided in Section 24(1) of the New Act.
28
35. Since we have dismissed the appeals filed by the appellants and confirm the order of the learned Single Judge, the issue confronted by the respondents about the applicability of New Act does not come for our consideration in these proceedings as if the appellant wish to proceed with the acquisition afresh they are certainly bound by the New Provisions.
With these observations the writ appeals are disposed of. A copy of the order be kept in each of the file.
C.C.as per rules.
( SHANTANU KEMKAR ) ( M.C. GARG )
JUDGE JUDGE
RJ