Rajasthan High Court - Jaipur
M/S Omway Buidestate Pvt Ltd vs Divisional Commissioner Jaipur on 20 December, 2011
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
**
1-Civil Writ Petition No.195/2009
M/s Omway Build Estate (P) Ltd Versus
Divisional Comnr Jaipur & Ors
2-Civil Writ Petition No.129/2009
Ghan Shyam Versus Divisional Comnr Jaipur & Ors
\Reportable/
Date of Order ::: 20/12/2011
Hon'ble Mr. Justice Ajay Rastogi
Mr. Abhay Kr. Bhandari, Sr. Adv., with
Mr. Ajeet Bhandari &
Mr. Vaibhav Bhargava for petitioner (CW-195/09)
Mr. Kamlakar Sharma, Sr. Adv., with
Ms Alankrita Sharma for petitioner (CW-129/2009)
Mr. Bharat Vyas, &
Mr. Abhinav Sharma, for respondent-2
Mr. RK Mathur, Sr. Adv., with
Mr. Aditya Mathur for respondent-3 (UIT, Alwar)
Since both the petitions involve common questions, and are directed against the order dt.29/12/2008 passed by Divisional Commissioner, Jaipur setting aside order dt.31/10/2008 of the Authorized Officer (Land Resumption) & Land Acquisition Officer, UIT, Alwar, in exercise of powers U/s 90-B(7) of the Rajasthan Land Revenue Act, 1956 (LR Act), hence are being decided by present order.
In order to appreciate grievance of the petitioners, facts leading to file instant petitions are necessarily to be indicate out of CWP-195/2009 (M/s Omway Build Estate (P) Ltd Vs. Divisional Commissioner, Jaipur & Ors). In respect of agricultural lands situated in village Bailaka Diwakri (Alwar district) which is subject matter of dispute, initially vide resolution NO.23 in meeting held on 16/08/1988, Urban Improvement Trust, Alwar (UIT) proposed to set up a residential colony Rohini Nagar and taking note thereof, State Government issued proposed notification dt.25/07/1995 U/s 4(1) of the Land Acquisition Act, 1894 (LA Act) and after taking note of the objections raised by land owners/persons interested U/ss 5A, declaration U/s 6 of LA Act was made & published vide notification dt.20/01/1997 and the Award came to be passed U/s 11 of LA Act on 25/06/98.
It is relevant to record that the Award was passed on 25/06/1998, but neither possession of the subject land was taken nor any compensation was offered nor paid either to the land owners (predecessors-in-interest) or to the present petitioners.
However, on 10/08/2000, the UIT took a decision to de-acquire the subject land keeping in view availability of other land with the UIT, slow speed of disposal of land, non-availability of funds for the compensation be paid and its poor financial conditions and in order to follow up action, letter dt.12/04/2001 (Ann.14) was written by Director, NCR & Secretary of the UIT, Alwar, and sent to the State Government to de-notify the acquisition and reminder was also issued on 29/08/2001 (Ann.15) and that apart, the UIT further resolved to re-affirm its policy to de-acquire the land and pursuant thereto, notices dt.16/10/2004 (Ann.16 & 17) were published in news papers inviting persons interested to file objections thereto.
It appears that after publication of notices (supra), the UIT in its later meeting reviewed its decision regarding Rohini Nagar Scheme but ultimately, notification U/s 48 of LA Act was published in the Gazette on 01/12/2006 (Ann.10) for withdrawal of subject land from acquisition. However, during the interregnum period, the petitioners purchased subject land vide registered sale deed dt.22/03/2006 & 10/11/2006 from various khatedars/land owners of subject land.
After withdrawal of subject land from acquisition vide notification dt.01/12/2006 U/s 48 of LA Act, Ghanshyam (petitioner-CWP-129/09) filed application U/s 90B(3) of LR Act in respect of 3.45 hectares of land on 09/03/2007 (Ann.1-CWP-129/09) while M/s Omway Build Estate (P) Ltd for 9.37 hectares of land for proposed development as residential township in their joint ventures.
After submission of their applications filed U/s 90B(3), notices thereof were published on 30/03/2007 in daily news paper - Rajasthan Patrika inviting objections. However, taking note of objections having been submitted by persons interested, both the applications U/s 90B(3) of LA Act were allowed by Authorized officer (respondent-4) vide order dt.14/06/2007 (Ann.3) and their subject land was mutated in the name of UIT, Alwar on 19/06/2007 and accordingly, layout plan was approved by the UIT (Ann.4) alongwith road network plan (Ann.6).
One of applicants who was person interested, as alleged, having raised objections before the Authorized Officer, namely Shri Rajesh Agrawal, & feeling aggrieved by order dt.14/06/2007 passed U/s 90-B(3), preferred appeal U/s 90B(7) of LR Act before the Divisional Commissioner, Jaipur who after taking note of submissions, set aside the order dt. 14/06/2007 of the Authorized Officer and remitted back to the authorized officer, vide order dt.21/08/2007 with the direction to examine the matter afresh in the light of what has been observed by the appellate authority.
It has come on record that after the matter was remanded back to the Authorized officer, Rajesh Agrawal did not appear before the authorized officer and ultimately, notice came to be published in daily news papers on 18/02/2008, yet he did not appear and ex parte proceedings were initiated against him. But in course of proceedings, the order initiating ex parte proceedings was re-called and at one stage, when the matter could not be proceeded further by Authorized officer, CWP-4599/2008 came to be filed by M/s Omway Build Estate (P) Ltd and this Court vide order dt.26/05/2008 directed the authorized officer to dispose of the application within time scheduled fixed by the Court.
It has been averred by petitioner (Ghan Shyam) that Rajesh Agrawal & one Suresh Mangla were all hand in glove and were raising objections at the instance of M/s Ozone Builders & Developers (P) Ltd in which Praveen Mangla was its Director who had at one point of time collaborated with M/s Omway Build Estate (P) Ltd in regard to the present project but disputes arose between M/s Omway Build Estate (P) Ltd with M/s Ozone Builders & Developers (P) Ltd which was referred to Arbitration to the Former Chief Justice of India, Mr.YK Sabharwal which proceedings are pending. It has further been averred that before matter could be referred for arbitration, M/s Ozone Builders raised the matter before Delhi High Court wherein order was passed to reserve 1/3rd plots for M/s Ozone Builders.
It has been alleged by the petitioners that Shri Praveen Mangla who had initially filed objections alongwith Rajesh Agrawal, Inder Mangla & Jethmal Jain, withdrew his objections before the authorized officer but thereafter Rajesh Agrawal filed his objections. Further, a public interest litigation (DB CWP-4810/2008) was filed by one Ashok Agarwal being hand in glove with Rajesh Agrawal (respondent-2 herein and one Praveen Mangla & Ors) assailing notification dt.01/12/2006 issued U/s 48 of LA Act regarding withdrawal of the subject land from acquisition; but that PIL came to be dismissed vide order dt.16/12/2008, apparently on the ground of their locus. That apart, at the same time, one Khatedar-Hazruddin also filed a civil suit in regard to the subject land praying for an injunction, that came to be rejected against which misc. appeal was filed but rejected and Special Appeal filed before the Division Bench wherein the suit, itself was withdrawn.
However, after the matter was remitted back, the authorized officer, taking note of objections raised by respondent-2 allowed application of petitioners filed U/s 90-B(3) of LR Act vide order dt.31/10/2008 against which Rajesh Agrawal (respondent-2) preferred appeal U/s 90-B(7) of LR Act before the Divisional Commissioner and the order of the authorized officer was set aside and the matter was again remitted back to the authorized officer, vide order dt.29/12/2008 which is subject matter of challenge herein.
This Court has heard the learned Senior Counsel for the parties at length and with their assistance, scanned the material on record.
Shri Kamlakar Sharma & Shri Abhay Kumar Bhandari, both the Senior Counsel appearing for petitioners vehemently contended that appeal preferred by respondent-2 (Rajesh Agrawal) U/s 90B(7) of LR Act before Division Commissioner was not maintainable and the order impugned being without authority & competence, without going into merits of the issues raised for consideration, the order impugned dt.29/12/2008 passed by Divisional Commissioner deserves to be set aside. In support, reliance has been placed upon judgments of this Court in Gajendra Singh Vs. Divisional commissioner (2009(2) WLC 668) & Smt.Meena Sharma Vs. Rajendra Kr.Porwal (2011 (4) WLC 524).
To support the impugned order of the Divisional Commissioner, Shri Bharat Vyas & Shri Abhinav Sharma, Counsel for respondents jointly submit that appeals preferred by respondents were maintainable and both the Counsel have tried to convince that judgments of Co-ordinate Bench on which reliance has been placed by Counsel for petitioner requires re-consideration and further submit that Sub-S.(1) & (3) of S.90-B of LR Act, both are inter-dependent and a reference has been made of such land in these two sub-sections and that being so, person aggrieved by an order passed by authorized officer, U/Sub-Ss.(1) or (3) of S.90B, statutory remedy of appeal under Sub-S.(7) of S.90B is available to the person aggrieved.
Counsel further submits that under the Scheme of LR Act, matters have been broadly divided into two categorized, judicial & non-judicial as referred to in Sub-S.(2) of S.23 and as regards judicial matters, cases have been specified in 1st Schedule appended to the LR Act and a mechanism has been provided of filing appeal or revision as per the hierarchy provided therein, and an order of authorized officer U/s 90B(3) is admittedly a non-judicial matter not being specified under 1st Schedule. Supervisory jurisdiction U/s 24 is vested with Divisional Commissioner; and all the officers being subordinate are under supervisory jurisdiction, the veracity of the non-judicial order can always be examined by Divisional Commissioner; but that has not been considered by a co-ordinate Bench of this Court in the judgment cited by Counsel for petitioner.
Co-ordinate Bench at principal seat Jodhpur examined the scope of S.90B(3) & (7) in Gajendra Singh Vs. Divisional commissioner (2009(2) WLC 668) and held that remedy of appeal is available in regard to order passed by authorized officer in exercise of its powers U/s 90-B(5). The Court observed ad infra:
29. .In this case the main question raised by the petitioner that pattas were under Section 90-B of the Act of 1956 by the U.I.T. to the petitioner on the basis of order passed by competent authority under sub-Section (3) of Section 90-B of the Act of 1956 but no appeal is provided before the Divisional Commissioner under sub-section (7) of the Section 90- B of the Act of 1956. According to the petitioner the Divisional Commissioner, Jodhpur has wrongly exercised its jurisdiction while entertaining such appeal because as per sub-section (7) of Section 90-B of the Act of 1956, appeal can be filed against the order made under sub-section (5) of Section 90-B and not against the order passed under sub-section (3) of Section 90-B of the Act of 1956 because under sub-section (3) of Section 90-B, agricultural land can be surrendered for resumption by the tenant or the holder of such land whereas under sub-section (5) of Section 90-B of the Act of 1956, land can be resumed upon surrender by any interested party and for which the Collector or the officer authorized by the State Government in this behalf can form opinion that the land is liable to be resumed under sub-section (1) and they can resume the land after recording the reasons in writing, meaning thereby according to sub-section (7) of Section 90-B of the Act of 1956, appeal can be filed against the order made under sub-section (5) of Section 90-B of the Act of 1956 but there is no provision for filing any appeal against the order made under sub-section (3) of Section 90-B of the Act of 1956. Therefore, the Divisional Commissioner has illegality entertained the appeal against the order so made by the authorized officer for resumption of the land under sub-section (3) of Section 90-B of the Act of 1956.
It has further been considered by another Co-ordinate Bench at principal seat Jodhpur in Anjana Kothari Vs. Divisional commissioner (SB CWP-1389/2009 decided vide judgment dt. 06/05/2011) and later on in Smt. Meena Sharma Vs. Rajendra Kr. Porwal (2011(4) WLC 524) and held that appeal against order U/s 90B(3) is not maintainable before Divisional Commissioner U/s 90B of LR Act. Relevant observation reads thus:
8. It is clear that sub-section (3) has to be read with sub-section (6), whereas, sub-sections (1), (2), (4) and (5) have to be read together as these are two separate streams for operating Section 90-B of the Act. The remedy by way of appeal to the Divisional Commissioner under sub-section (7) is available to a `person aggrieved' only. If the land is resumed under sub-section (1) read with sub-sections (2), (4) and (5) of the Act any person aggrieved of such resumption can file appeal before Divisional Commissioner under Section 90-B(7) of the Act. The purpose of providing such remedy of appeal to the Divisional Commissioner and excluding the jurisdiction of civil court in such cases is obvious. When the State Government initiates such action an in-house departmental remedy of appeal appears to have been provided under sub-section (7) of the Act. However, if such surrender takes place at the instance of tenant or land holder under sub-section (3), the land is made available to such person himself for planned development and there cannot be any question of such person being aggrieved of such order.
Having considered the citations (supra), this Court is also in full agreement with the view expressed by the Co-ordinate Bench in Smt. Meena Sharma Vs. Rajendra Kr. Porwal & Gajendra Singh Vs. Divisional commissioner (supra) and would further like to record that a bare look at the Scheme of S.90B of LR Act discloses that under its Sub-S.(1), a person holding any land for agricultural purposes in urbanisable limits has either used or allowed to be used such land or part thereof for non-agricultural purposes or has parted with its possession or part thereof, for a consideration through sale or agreement to sell and/or by executing power of attorney and/or Will, for purported non-agricultural use; and violation has been committed by him by utilizing agricultural land for non-agricultural purpose, that too before commencement of Rajasthan amendment laws Ord.3 of 1999 (which came into force w.e.f. 17/06/1999), rights & interest of such person in such land or holding or part thereof, is liable to be terminated & resumed and that certainly causes adverse consequences and before initiating process of resumption, it has been provided of serving him a notice and after affording an opportunity of hearing to the tenant or holders of such agricultural land or persons duly authorized, and a summary procedure has to be followed by authorized officer U/sub-S.(4) and after hearing the parties, the Collector or authorized officer appointed by State Government in its behalf, after recording reasons in writing may pass such orders U/sub-S.(5) of S.90B regarding resumption of such land.
Thus Sub-Ss.(1), (2), (4) & (5) of S.90B is a complete mechanism provided under Scheme of LR Act regarding termination of rights & resumption of land held for any agricultural purpose, if being utilized for non-agricultural purposes or having part with its possession by a tenant or holder of such land.
However, at the same time, if an application U/Sub-S.(3) of S.90B is being submitted by holder of such land or any person authorized by land holder, showing his willingness to surrender his rights with an intention to develop such land for use either of housing or commercial purpose, what is required for an authorized officer is to examine and record its satisfaction regarding willingness of such person interested, holding rights over agricultural land, at the stage upon order for resumption of the land being passed under sub-S.(3) of S.90B.
However, the land so resumed under Sub-S.(3) vests with the State Government, free from all encumbrances from date of passing of such orders for resumption but the Legislature was very much conscious that expressing willingness with a view to plan for development for housing or commercial purposes while the land being surrendered by tenant or holders of such land under Sub-S.(3), upon being stood resumed, has to be made available to the person who surrendered the land for its planned development and if authorized officer failed to record reasons/satisfaction, he alone could be said to be aggrieved and there is no requirement under Sub-S.(3) to issue public notice and at the same time, there is no bar that application once rejected U/Sub-S.(3) on account of changed circumstances fresh application could not have been filed by him but this Court would like to record that there may not be a requirement of public notice under law but like Sub-S.(1) there may be a dispute among the co-sharers or holders of land or the person authorized while the application is submitted to submit their objection before the Collector/Authorized officer U/s 90B(3) is examined, public notice like of Sub-S.(1) is required to be published and opportunity has to be afforded to the person aggrieved/person interested to avoid further litigation amongst holder of land inter-se.
But, under Sub-S.(1) if the land is finally resumed, after affording an opportunity of hearing under Sub-S.(5) to the land holder, certainly it causes adverse consequence and is required to be examined and that is the purpose, for which person aggrieved by order made under Sub-S.(5), has a right of opportunity of filing appeal before Divisional Commissioner under Sub-S.(7) of S.90B of LR Act. That being so, this Court is also of the considered opinion that order passed by authorized officer under Sub-S.(3) is not appealable U/Sub-S.(7) of S.90B of LR Act.
As regards submission made by Counsel for respondents regarding scope of S.23 & 24 of LR Act, suffice is to say that S.23 only provides controlling powers being vested for non-judicial matters while S.24 provides a hierarchy of subordination of the Revenue Courts and its officers; and the authorized officer appointed by State Government or Collector, as the case may be, subordinate in hierarchy, but that will not provide supervisory jurisdiction to Divisional Commissioner in re-appreciating/ reviewing & examining orders passed by authorized officer exercising powers being vested with the authority under a statute (LR Act) unless there is express provision being provided; in absence whereof, submission made by respondents' Counsel regarding scope of Ss.23 & 24 of LR Act for holding jurisdiction of Divisional Commissioner, does not hold good or give any assistance to their case.
Further submission made by Counsel for respondents that at one stage, the order was passed by authorized officer U/s 90B(3) of LR Act and the appeal came to be preferred by respondent-2 and after hearing the parties, the mater was remitted back to the authorized officer and that being not assailed, petitioners are estopped from questioning the jurisdiction of Divisional Commissioner U/s 90B(7) of LR Act, is otherwise bereft of merit for the reason that there cannot be any estoppel against statute and the right of appeal being a creature of statute; such right can always be determined only from statute, itself. In Rajkumar Shivhare Vs. Asstt. Director Enforcement (2010(4) SCC 772) Apex Court while holding that if language of statute is unambiguous, no statutory interpretation is warranted; further observed ad infra:
"29. By referring to the aforesaid schemes under different statues, this Court wants to underline that the right of appeal, being always a creature of a statute, its nature, ambit and width has to be determined from the statute itself. When the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted either to widen or restrict the same."
In the instant case, admittedly, the petitioner did not challenge the order of remand dt. 21/08/2007 of the Divisional Commissioner, before any higher forum rather on the contrary, appeared and participated in the proceedings before authorized officer but that will not waive its right to question the appellate jurisdiction of Divisional Commissioner provided U/s 90-B(7) of LR Act.
Since the parties have made submissions on merits, as well, this Court considered it appropriate to examine. Question arose for consideration & having prevailed upon Divisional Commissioner for setting aside order of the authorized officer dt.31/10/2008 appears to be on the premise that the petitioners purchased the subject land through registered sale deed admittedly much after passing of the Award dt.25/06/1998 U/s 11 of LA Act, but before notification dt.01/12/2006 U/s 48 of LA Act came to be published in Gazette by State Government for withdrawal of subject land & released from acquisition, the question is as to whether transfer of subject land during interregnum period will remain void for all practical purposes in view of S.4 of Rajasthan Lands (Restrictions on Transfer) Act, 1976.
It is settled legal position of law that powers U/s 48 of LA Act could be exercised at any stage even after passing of the Award but before taking possession of the subject land. In the instant case, the possession of subject land under acquisition admitted was not taken by State Government even after the Award U/s 11 of LA Act came to be passed or at the stage when State Government took decision to withdraw the subject land from acquisition, which is not under challenge in pending proceedings.
The Act, 1976 appears to have been enacted with an object to prevent transaction of purported transfers or transfer of such land to unwary public and it halts in preventing unauthorized transaction and rather to overcome the difficulties cause in the way of acquisition of lands.
What is to be examined by this Court is as to what will be the effect of S.4 of Rajasthan Lands (Restrictions on Transfer) Act, 1976 (Act, 1976) which has been enacted to impose restrictions on transfer of lands proposed to be acquired or under acquisition for public purposes. Relevant provision of Ss.3 & 4 being relevant are reproduced ad infra:
3. Prohibition on transfer of lands acquired by State Government.- No person shall purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in the State of Rajasthan, which has been acquired by the Government under the Rajasthan Land Acquisition Act, 1953, or under any other law providing for acquisition of land for a public purpose.
4. Restriction on transfer of lands in relation to which acquisition proceedings have been initiated. - No person shall, except with the previous permission in writing of the competent authority, transfer or purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in the State of Rajasthan, which is proposed to be acquired in connection with the scheme and in relation to which a declaration to the effect that such land or part thereof is needed for a public purpose having been made by the State Government under section 6 of Rajasthan Land Acquisition Act, 1953 or under the corresponding provision of any other law providing for acquisition of law for a public purpose, and the State Government has not withdrawn from the acquisition under section 48 of that Act or under any such law.
It emerges from the provisions (supra) that S.3 provides a complete prohibition on transfer of lands acquired by State Government for public purpose, which vests free from all encumbrances under LA Act and such transfer of lands becomes void for all purposes qua State Government. At the same time, U/s 4 restrictions have been imposed on transfer of lands in relation to which acquisition proceedings having been initiated and the transfer may be by way of sale, mortgaged, gift or any other mode provided by law and declaration to that effect has been made U/s 6 that the land is required for public purpose but State Government has not withdrawn the land from acquisition U/s 48 of LA Act. Provisions under the Scheme (supra) clearly indicates that where acquisition proceedings having been commenced for public purposes and declaration being made U/s 6, if any transfer of land is undertaken without previous permission in writing with the competent authority, such transaction/transfer of the lands will not be recognized and would be void qua State Govt., but not in general with a further rider that State Govt has not withdrawn such land from acquisition U/s 48 of LA Act.
A converse position would have been that the case where State Government has withdrawn the land from acquisition U/s 48 of LA Act which as per judgment of Apex court in Shanti Sports Club Vs. Union of India (2009(15) SCC 705) has to be duly published in Gazette so that it may be made widely known to the public at large that such lands stands withdrawn from acquisition and transfer of lands can be recognized in general for all practical purposes.
In the instant case, admittedly land was purchased by petitioners through registered sale deed before withdrawal of the subject land from acquisition U/s 48 of LA Act vide notification dt.01/12/2006 but the Divisional Commissioner in the order impugned observed that since on the date when transaction/transfers took place, may be by registered sale deed, it was restricted under S.4 of the Act, 1976, latter development having taken place regarding withdrawal of subject land from acquisition by State Government in exercise of powers U/s 48 of LA Act, will not make the transaction to be valid for future course of action.
Effect of S.48 of LA Act has been considered by Apex Court in State of MP Vs. Vishnu Pd.Sharma (AIR 1966 SC 1593) ad infra:
19. Then reliance is placed on S.48 which provides for withdrawal from acquisition. The argument is that S. 48 is the only provision in the Act which deals with withdrawal from acquisition and that is the only way in which government can withdraw from the acquisition and unless action is taken under S.48(1) the notification under S.4(1) would remain (presumably for ever). It is urged that the only way in which the notification under S. 4(1) can come to an end is by with drawal under S.48(1). We are not impressed by this argument. In the first place, under S.21 of the General Clauses Act,(No.10 of 1897), the power to issue a notification includes the power to rescind it. Therefore, it is always open to government to rescind a notification under s.4 or under s.6, and withdrawal under S.48(1) is not the only way in which a notification under s.4 or S.6 can be brought to an end. Section 48(1) confers a special power on government of withdrawal from acquisition without canceling the notifications under Ss.4 & 6, provided it has not taken possession of the land covered by notification under S.6. In such circumstances, the government has to give compensation under S.48(2). This compensation is for the damage suffered by the owner in consequence of the notice under S. 9 or of any proceedings thereafter and includes costs reasonably incurred by him in the prosecution of the proceedings under the Act relating to the said land. The notice mentioned in sub-s.(2) obviously refers to the notice under S.9(1) to persons interested. It seems that S.48 refers to the stage after the Collector has been asked to take order for acquisition under S.7 and has issued notice under S.9(1). It does not refer to the stage prior to the issue of the declaration under S.6. Section 5 says that the officer taking action under S.4(2) shall pay or tender payment for all necessary damage done by his acting under s.4(2). Therefore the damage if any, caused after the notification under S.4(1) is provided in S.5. Section 48(2) provides for compensation after notice has been issued under S.9(1) and the Collector has taken proceedings for acquisition of the land by virtue of the direction under S.7. Section 48(1) thus gives power to government to withdraw from the acquisition without canceling the notifications under Ss.4 & 6 after notice under s.9(1) has been issued and before possession is taken. This power can be exercised even after the Collector has made the award under S. 11 but before he takes possession under s.15, Section 48(2)provides for compensation in such a case. The argument that S.48(1) is the only method in which the government can withdraw from the acquisition has therefore no force because the government can always cancel the notifications under Ss.4 and 6 by virtue of its power under S.21 of the General Clauses Act and this power can be exercised before the government directs the Collector to take action under S. 7. Section 48(1) is a special provision for those cases where proceedings for acquisition have' gone beyond the stage of the issue of notice under S.9(1) and it provides for payment of compensation under S. 48(2) read with S.48(3). We cannot therefore accept the argument that without an order under S.48(1), the notification under S.4 must remain outstanding. It can be cancelled at any time by government under s.21 of the General Clauses Act and what S. 48 (1) shows is that once government has taken possession it cannot withdraw from the acquisition. Before that it may cancel the notifications under Ss.4 and 6 or it may withdraw from the acquisition under s.48(1). If no notice has been issued under s.9(1) all that the government has to do is to pay for the damage caused as provided in s.5; if on the other hand a notice has been issued under s.9(1), damage has also to be paid in accordance with the provisions of s.48(2) & (3). Section 48(1) therefore is of no assistance to the appellant for showing that successive declarations under S.6 can be made with respect to land in the locality specified in the notification under s.4(1).
In Jasraj Vs. State of Rajasthan (1976 RLW 660) this Court observed ad infra:
15. ...The effect of an order under section 48 of the Act is to completely take away S.4 notification. Once that order i.e. Under section 48 of the Act has been passed, result is that the Government has withdrawn from the acquisition land which formed the subject matter of sec.4 notification.
... The position under the law is that an order under section 48 of the Act has the result of withdrawing the notification issued under section 4. This means that there is a clean slate and subsequently the Government wants to acquire land which must start from the stage of issuing a fresh notification under section 4 of the Act.
Taking note of judgments (supra), in the opinion of this Court, after issuance of Gazette notification U/S.48 of LA Act the very inception of acquisition proceedings stands withdrawn & effect of S.4 of the Act, 1976 ceases to subsist and slate becomes clean and such transaction/ transfers of lands which took place during the interregnum period are held to be valid even against the State Government & in general for all practical purposes; however it will not preclude the State Govt., if intends to acquire the subject land afresh at a later stage, but that too by initiating acquisition proceedings afresh if required for public purposes.
As regards judgment on which Counsel for respondent placed reliance in Meera Sahni Vs. Lt. Governor (2009(8) SCC 177), it was a case where the land was purchased after declaration of acquisition U/s 6, but no notification U/s 48 which empowers State Government to withdraw the land from acquisition, was issued/published in gazette and in such circumstances, examining scope of restriction regarding transfer of land, imposed U/s 4, it was held that such transaction being void would not be recognized by State Government but in instant case, on the date when the subject land was purchased, such transfer of land might be void qua State Government, but after issuance of notification U/s 48 of LA Act petitioners became holders of subject land & competent enough to submit their application U/s 90-B(3) of LR Act. Thus, the sale might be void qua State Government; at one stage but after issuance of notification by State Government U/s 48 withdrawing subject land from acquisition, such transfer of lands certainly be considered to be valid in general for all practical purposes and whatever rights being available to the land owners are available to the land holders.
Further submission made by Counsel for respondents that even if the order of Divisional Commissioner is not sustainable but this Court would not like to restore the order which will perpetuate illegality having been committed by authorized officer while passing order dt. 31/10/1998, is wholly without merit for the reason that application was filed much after the subject land was withdrawn from acquisition vide notification dt.01/12/2006 and that was maintainable under the law and will not affect the rights & title of the land holders in whose favour it stood transferred pendente acquisition proceedings.
Consequently, writ petitions succeed and are hereby allowed. Order dt.29/12/2008 of Divisional Commissioner is quashed and set aside. No order as to costs.
(Ajay Rastogi), J.
K.Khatri/p26/ 195CW2009(2)RsrvDec20LAO.doc