Hari Ram M. Dhanwani v. State of Raj — 1988 DIGILAW 226 (RAJ)

JUDGMENT 1. - The Government of Rajasthan issued a gazette notification dated August 4, 1979 (Annr. 30 to the writ petition). The said notification was issued under Section 52(l) of the Rajasthan Urban Improvement Act, 1959 (for short, the Act). The present writ petition has been filed by the petitioner and it is prayed that the said notification be quashed in so far as it relates to the plot of the petitioner situated in Ajmer. 2. Khasra No. 2050 measuring 4 biswas was evacuee property and the same was put to public auction on January 13, 1968. The petitioner Hari Ram R. Dhanwani was also one of the bidders and his highest bid of Rs. 2,700/- was accepted by the Managing Officer/Chief Settlement Commissioner, Government of India (respondent No. 4) A sale certificate dated October 15, 1969 was issued to the petitioner declaring him full owner of the above plot. The mutation was also attested in favour of the petitioner in the revenue record The petitioner filed an application on October 1, 1971 to the U.I.T. Ajmer, respondent No 2, under Section 72/73 of the Act for according permission to construct. The permission was not accorded and the petitioner was informed that his land cames under the Ashok Marg Housing Scheme of the Trust and the permission could not therefore be accorded. The petitioner was called upon to negotiations and a decision is said to have been taken by the UIT Ajmer (for short, the Trust) on or about January 4, 1974 that as per the housing scheme , the plot should measure 500 sq. yards and therefore such persons whose plots come under the aforesaid housing scheme should retain 500 sq. yards irrespective of the area of the land and surplus should be sold to those owners whose land is less than 500 sq. yards. The Trust also took a decision that such of the plot holders should deposit Rs. 12.30 P. per sq. yard as development charges. 3. The petitioner is said to have deposited the amount of development charges, but he was surprised to note that later on a decision was taken that no person whose plot of land falls in the Ashok Marg Housing Scheme of the Trust should be allowed to construct and his land should be acquired. The amount paid by cheque towards the development charges was refunded to the petitioner. The amount paid by cheque towards the development charges was refunded to the petitioner. This was in pursuance of the decision of the Trust taken on November 27, 1974. It is also the case of the petitioner that he like many other plot-holders, it may be stated that it appears that the dispute relates to plots No. 6 to 16, was called upon to surrender possession of the plot to the Trust. Later on negotiations commenced and when they were in progress a notice under Section 52 (2) of the Act bearing despatch No. 919 dated June 5, 1976 was issued by the Trust informing the petitioner that his plot of land was required for improvement namely Ashok Marg Housing Scheme of Ajmer City and as such the sail plot of land as described in the notice was proposed to be acquired. The petitioner was called upon to show cause within 0 days as to why the plot of land be not acquired. A further notice was issued under Section 52 (3) of the Act under which the petitioner was required to appear before the respondent No. 3 and he did appear and it is the case of the petitioner that a decision was taken that so far as his plot is concerned. it will not be acquired and a note was written to this effect. According to the petitioner, Ashok Marg Housing Scheme which is said to have been notified sometime in the year 1976 was later on abandoned and a decision was taken not to execute it. Therefore, there is no question of a acquisition of the plot in dispute for that scheme. Later on a decision was taken on March 24, 1978 that each of the effected owners of the plots should pay Rs. 20/- per sq. yard as development charges and should also inform that he has no other land in Ajmer. The petitioner was asked to submit title deed and the information. The petitioner supplied the information vide his letter Sep. 7, 1988 and undertook to pay the charges of development as claimed. The petitioner was also called upon to file his affidavit and to furnish information as required in the letter dated April 10, 1976 of the Trust. The petitioner paid a sum of Rs. 7,760/- through account payee cheque. The petitioner supplied the information vide his letter Sep. 7, 1988 and undertook to pay the charges of development as claimed. The petitioner was also called upon to file his affidavit and to furnish information as required in the letter dated April 10, 1976 of the Trust. The petitioner paid a sum of Rs. 7,760/- through account payee cheque. But inspite of the full payment, a notice under sub-section (5) of Section 52 of the Act was issued calling upon the petitioner to surrender the possession of his pot of land within 30 days failing which forcible possession thereof shall be taken under Section 52 (6) of the- Act. The petitioner made representation to the Minister in charge who issued stay order, but later on at the back of the petitioner, the stay order was vacated. 4. In short, the case of the petitioner is that he had purchased the plot of land for residential purpose, Ashok Marg Housing Scheme of the Trust had been abandoned and a decision was taken not to execute it. Therefore, the plot of land could not have been acquired. The petitioner's case further is that once he had applied for permission, the Trust had no power to withhold the same. Reply to the writ petition was filed on behalf of the Trust (respondent No. 2) as well as on behalf of the State of Rajasthan (respondent No. 1). The case of the respondents is that the plot of land of the petitioner was falling under Ashok Marg Housing Scheme of the Trust and a notification for the scheme was published in the Rajasthan Gazette dated August 9, 1966 (Annr. R/1 and no permission could be granted to the petitioner for construction of any house on the above plot and the petitioner was only entitled to compensation under law. So far as the payment of development charges is concerned, the case of the Trust is that the petitioner did not pay the amount within stipulated time which time was not extended. It is further the case of the respondent that in view of the passing of the directions of the State Government to all Collectors concerned with u/s. of Rajasthan (No. F.6 (3) TP/69 dated 7.4.1975) information was given to the petitioner that a decision was taken by the Trust not to allot any land on payment of development charges. It is further the case of the respondent that in view of the passing of the directions of the State Government to all Collectors concerned with u/s. of Rajasthan (No. F.6 (3) TP/69 dated 7.4.1975) information was given to the petitioner that a decision was taken by the Trust not to allot any land on payment of development charges. It is denied that on July 23, 1976 it was agreed not to acquire the plot of the petitioner and any note to this effect was recorded, though it is admitted that the petitioner appeared on that date in the office of the Trust. So far as the allegations of the petitioner in para 30 of the writ petition that notice under Section 52 (3) of the Act was not issued the case of the Trust is that in fact notice under Section 52 (3) of the Act was issued and the land of the petitioner was acquired for public purpose, namely, Ashok Marg Housing Scheme of Ajmer City. 5. It may be stated that in a public auction on January 13, 1967, the highest bid of the petitioner for Rs. 2,700/- was accepted and a certificate of sale was issued to the petitioner on October 15, 1969. Therefore, it can be said that the plot in dispute was evacuee property and the same was sold in public auction to the petitioner, who became the owner thereof under the certificate of sale. There is sufficient material on record that there was a scheme, namely 'Ashok Marg Housing Scheme' of the Trust in force much before the plot of land was sold or purchased by the petitioner. The petitioner does not dispute that there was a housing scheme in force for the area in which the plot of the petitioner falls. A look at Annr. R/1/2 will show that the Government of Rajasthan Town Planning Department issued a notification dated August 19, 1966 and the said notification was issued in exercise of the powers of the Mate Government under sub-section (1) of Section 32 of the Act. The state Government declared that UIT Ajmer hid decided to frame a scheme for urban areas (described in the notification) within the limits of Municipal Council Ajmer and the scheme is known as Ashok Marg Housing Scheme. A look at Annr. The state Government declared that UIT Ajmer hid decided to frame a scheme for urban areas (described in the notification) within the limits of Municipal Council Ajmer and the scheme is known as Ashok Marg Housing Scheme. A look at Annr. R/3 (Annexed to the reply of the Trust) will show that in exercise of the powers under Section 39 of the Act the period for execution of the scheme 'Ashok Marg Housing Scheme Ajmer' was extended upto March 1, 1985. A loots at Section 31 (1) of the Act will show that whenever the Trust decides to frame a scheme for any urban area, the State Government may, at the request of the Trust issue a notification specifying such area and declaring that the Trust has decided to frame a scheme for such area, and a notification under sub-section (1) shall remain in force for six months from the publication thereof, unless the same is extended by the State Government which extension cannot be more than six months. On the basis of record, nothing can be said as to whether the State Government sanctioned the scheme under Section 38 (1) of the Act, but there is a document Annr. R/3 with the reply of the Trust issued under Section 39 (3) of the Act extending the period of the execution of scheme upto March 31, 1985. Under Section 39 of the Act the question of extension of period execution of the scheme sanctioned under Section 38 (1) of the Act will only arise in case there is sanctioned scheme under Section 38 of the Act. Therefore, for the purpose of this writ petition, it can be said that there was a sanctioned scheme under Section 38 (1) of the Act, the period of execution of which was extended vide Annr. R/3 dated August 4, 1985 upto March 31, 1985. 6. So far as the argument of the learned counsel for the petitioner that the Trust took a decision not to execute the scheme in its meeting held on April 5, 1969 it may be stated that a perusal of Annr. 31 dated April 5, 1969, does show that a decision was taken by the Trust not to execute the schemes including Ashok Marg Housing Scheme the reason is that in case the land was acquitted and higher amount shall be paid as compensation. 31 dated April 5, 1969, does show that a decision was taken by the Trust not to execute the schemes including Ashok Marg Housing Scheme the reason is that in case the land was acquitted and higher amount shall be paid as compensation. It further appears from the perusal of Annr. 31 that ban should be imposed on the plot holders that they will divide the plots in accordance with the scheme and shall deposit the development charges in the Trust. The persons whose plots of land fall in the scheme were to be called for discussion by the Trust. But the question is as to whether by Annr. 31 dated April 5, 1969, any decision was taken not to execute the scheme and whether the said decision could have been taken by the Trust when the Scheme had been sanctioned under Section 38 of the Act? A look at Section 35 (1) of the Act will show that after the expiry of the date referred to in clause (a) of sub-section (2) of Section 33 and the period prescribed by Section 34 in respect of any scheme the Trust shall consider any objections, suggestions and representations received thereunder and after affording to all persons making such objections, suggestions or representations opportunity of being heard. the Trust may either abandon the scheme or apply to the State Government for sanction of the scheme with such modifications, if any as the Trust may consider necessary. The power to sanction, reject or return scheme vests in the State Government under Sub-section (1) of Section 37 of the Act. Once the Government sanctions the scheme, it has to announce the fact by notification and the Trust has to proceed to execute the scheme within the time prescribed or within the extended period. No doubt under Section 40 of the Act at any time after a scheme has been sanctioned by the State Government and before it has been carried into execution, the Trust may alter it. Under the proviso to Section 40 of the Act if any alteration is estimated to increase the estimated net cost of executing a scheme by more than Rs. 50,000/- or 5 per cent of such cost, whichever is less, the alteration shall not be made without the previous sanction of the State Government. Under the proviso to Section 40 of the Act if any alteration is estimated to increase the estimated net cost of executing a scheme by more than Rs. 50,000/- or 5 per cent of such cost, whichever is less, the alteration shall not be made without the previous sanction of the State Government. So far as Section 36 of the Act is concerned, it only comes into play before the State Government sanctioned the scheme under Section 38 (1) of the Act, it has no application after the scheme of the Trust is sanctioned by the State Government by publication of the notification under Section 38 (1) of the Act. It is not a case of altering the Ashok Marg Horsing Scheme sanctioned under Section 38 (1) of the Act and abandonment of the scheme is not altering the same. Under Annr., 31 dated April 5, 1969, a decision was taken that the scheme shall not be executed. A reading of Section 40 of the Act will show that it relates to alteration of the scheme after sanction and it does not relate to abandonment or cancellation of the Scheme which has been sanctioned by the State Government. It has already been said earlier that in Annr. R/3 it has been mentioned that the period of execution of the scheme was extended upto March 31, 1985 in exercise of the powers of the State Government under Section 39 (1) of the Act. Though it cannot be said whether Annr. 31 dated April 5, 1969 was made by the Trust after the scheme had been sanctioned under Section 38 (1) of the Act, but even if it may be assumed that it was made after the sanction of the Scheme under Section 38 (1) of the Act, a decision was taken not to execute the scheme, but later on the period of execution of the scheme was extended under Section 3 of the Act. Therefore resolution of the Trust dated April 5, 1969 (Annr. Therefore resolution of the Trust dated April 5, 1969 (Annr. 31) firstly will have no relevance to the present case and secondly the Trust having taken a decision not to execute the scheme and it was well within its power to extend the period of execution of the scheme and the State Government was again within its right his to issue a notification under Section 39 (1) of the Act to extend the period of execution of the scheme. 7. Another question which arises for determination is whether the previsions of Section 52 and 53 of the Act are ultra vires and whether notwithstanding the fact that the Trust had at one time take a decision to exclude the plot of the petitioner and other plots of other persons from the scheme, it could have taken proceedings to acquire the land under Chapter VII of the Act ? In para 41(n) of the writ petition, the case of the petitioner is that compulsory acquisition of land and taking possession thereof and determination and making award of compensation as contained in Section 52 and 53 of the Act are unfettered, unguided, violative of fundamental rights guaranteed under Article 14, 19 and 31-A of the Constitution of India and are highly per se discriminatory as compared with the corresponding provisions contained in Section 4, 5A, 6, 9 to 17-A and other allied sections. The provisions of Section 52 and 53 of the Act offend Articles 14, 19 and 31-A of the Constitution and deserve to be struck down To us, it appears that the provisions of Section 52 and 53 of the Act do not offend Articles 14, 19 and 31-A of the Constitution and the powers are not unfettered or unguided. A look at Section 52(2) of the Act will show that before publishing a notice under sub-section (1), the State Government shall by another notice call upon the owner of the land and any other person who in the opinion of the State Government may be interested therein to show cause, within such time as may be specified in the notice, why the land should not be acquired. The said notice has to be individually served upon the owner of the land and any other person who in the opinion of the State Government may be interested therein. The said notice has to be individually served upon the owner of the land and any other person who in the opinion of the State Government may be interested therein. It shall be published in the official Gazette atleast 30 days in advance and shall be pasted on some conspicuous place in the locality, where the land to be acquired is situate. Under Section 52(3) of the Act the owner of the land or and other person interested therein may show cause and make objections. why the land should not be acquired. The objector has to be given an opportunity of being heard and has a right to be presented by a pleader and only after hearing the objections and after making such inquiry as deem necessary, he has to submit the case for decision to the State Government and thereafter the State Government has to pass the orders as it deem fit Therefore, sufficient safe guards are contained in sub sections (2) and (3) of Section 52 of the Act and it cannot be said that no guide lines are provided. A look at Section 59 A which Section was inserted w.e.f. December 2, 1972 by Section 3 of the Rajasthan Act No. 26 of 1876 published in Rajasthan Gazette Extraordinary Part IV A dated April 17, 1976 at page 37 will show that so far as the acquisition of the Land required for the purpose of improvement or for any other purpose under the Act is concerned, no proceedings shall be taken under the Rajasthan Land Acquisition Act, 1933. Therefore, with effect from December 2, 1972, so far as the acquisition of the land for development of the area by the Trust is concerned, the provisions contained in Chapter VII alone will apply and the provisions of Rajasthan Land Acquisition Act, 1953 will have no application. The Act being the special Act, the provisions in respect of acquisition of land required for improvement or any other purpose of the Act will have application. 8. In our opinion, even if at certain stage of the execution of Ashok Marg Housing Scheme the Trust thought or took a decision that the plot of the petitioner should be excluded, it could have taken a decision to acquire the land of the petitioner. 8. In our opinion, even if at certain stage of the execution of Ashok Marg Housing Scheme the Trust thought or took a decision that the plot of the petitioner should be excluded, it could have taken a decision to acquire the land of the petitioner. Under the provisions of the Act it could have represented to the State Government to acquire the land and the State Government could have issued a notice under subsection (1) of Section 52 of the Act specifying the purpose for which the land is required and could also stated that the State Government has decided to acquire the land in pursuance of sub-section (1) of Section 52 of the Act. A notification Ann-30 dated August 4, 1979 which was published in Rajasthan Gazette and a perusal of which will show that on the representation from the Trust the said notification was published under Section 52 (g) of the Act. It will further appear from the aforesaid notification that it is mentioned that from the date of publication of the notification the land mentioned therein including the plot of the land of the petitioner khasra No. 2050 shall stand vested in the State Government free from all encumbrances. Sub-section (4) of Section 52 of the Act provides that when a notice under subsection (1) is published in the official Gazette, the land shall on and from the date of such publication, vest absolutely in the state Government free from all encumbrances. Under sub-section(4) of section 52 of the Act where any land is vested in the State Government under Sub-section (1) the State Government may, by notice in writing order any person who may be in possession of ti e land to surrender or deliver possession thereof to the State Government or any person duly authorised by it in this behalf within thirty days of the service of the notice, and if any person refuses or fails to comply with an order made under sub-section (1) the State Government may take possession of the land and may for that purpose use such force as may be necessary. There are provisions for compensation, appeal to the District Judge against the decision of the Collector in respect of compensation and again for appeal to the High Court against the decision on the District Judge, Thus, as already stated earlier, the land of the petitioner could have been acquired under the provisions of Chapter VII of the Act and any decision of the Trust taken earlier does not debar the Trust from acquiring the land which falls in Ashok Marg Housing Scheme of the Trust sanctioned under Section 38 (1) of the Act. It may be stated that as already stated earlier, a notification under Section 32 (1) of the Act had been issued on August 29, 1956 for the areas including the area where the plot of the petitioner is situated and later on the scheme was sanctioned under Section 38 of the Act and its period of execution was extended under Section 39 of the Act. By virtue of Sub-section (3) or Section 32 of the Act if the sanction of a scheme is notified in accordance with section 38 in respect of such area before the expiry of the notification under Section 32. such notification shall continue in force untill the scheme is carried out. Under sub-section (4) of Section 32 of the Act, during the period that a notification under Section 32 remains in force in respect of any urban area no building shall be erected, re-erected, altered or added within that area without the written sanction of the Trust, When by virtue of sub-section (4) of Section 52 of the Act after the publication of the notice under sub-section (I) of Section 52 of the Act in the Official Gazette the land from the date of publication of the notice vests absolutely in the State Government free from all encumbrances no question of permission to construct even on an application under Section 72/73 of the Act arises and the Trust is not bound to sanction the permission for construction on the land which has been vested in it. No doubt before any land falling in any area of the scheme as sanctioned under Section 38 of the Act is acquired under the provisions of Chapter VII of the Act, the Trust could not have and should not have refused to sanction the construction on application made to it under Section 72/73 of the Act on the ground that the land falls in the scheme area, but that question is now of academic interest as recourse to the provisions of chapter VII of the Act for acquisition of the land including the land of the petitioner has been taken by the Trust in 1979, and because now the land vests in the Trust absolutely free from all encumbrances, no question of issuing mandamus against the Trust to grant permission to construct to the petitioner arises. The Trust can have recourse to the provisions of Section 52(5) and (6) of the Act and there is no illegality in issuing the notice under the aforesaid provisions. 9. There is no provision in the Act for allotment of a plot of land of the size and area as per the scheme sanctioned under - Section 38( 1) of the Act. The purpose of the Act is to make provision for improvement of urban area. Therefore, if any person is uprooted as a result of acquisition of the land and he has no other plot of land the trust must consider allotting him a plot of land in accordance with the sanctioned scheme in lieu of acquisition or in lieu of compensation to the owner of the plot and such a course will not cause undue harm to such of the persons who have no other plot of land. 10. Consequently, we find no merit in this writ petition and it is hereby dismissed. But if the petitioner has no other plot of land the Trust shall consider sympathetically allotting a plot of land to him in accordance with sanctioned scheme. Costs made easy.Petition Dismissed. *******