Research › Browse › Judgment

Rajasthan High Court · body

1993 DIGILAW 118 (RAJ)

Jagrup Singh v. State of Rajasthan

1993-02-18

RAJESH BALIA

body1993
Judgment Rajesh Balia, J.-This petition pertains to acquisition of the petitioner’s land situated at Chuck 2-e Chhoti Tehsil and District Sriganganagar. This is second time that the petitioner has come before this Court challenging the notification dated 9th September, 1987, issued under Section 4 of the Central Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’), annexed along with the petition as Annexure 4, and declaration under Section 6 of the Act, dated 10-9-1987 (published in Gazette Extraordinary dated 11-9-1987), covering the land comprised in the notification Annexure 4, which has been annexed as Annexure 5, to the writ petition. The public purpose for which the land in question is sought to be acquired, so stated to be in these annexures, is that the land in question is required for construction of sewerage plant and strips, within the Municipal Council, Sriganganagar. In the first instance, after publication of notification under Section 4 of the Act, which was published on 11-9-1987, in the Official Gazette; the petitioner’s co-licensee received a notice dated 11-9-1987 on 25-9-1987, purported to have been issued by the Land Acquisition Officer, Sriganganagar under Section 9 of the Act. The petitioner filed writ petition, number S.B. Civil Writ Petition No. 2420/87 --Brij Mohan Narain vs. Land Acquisition Officer and others; challenging the acquisition proceedings. After filing of the writ petition, the declaration dated 10-7-1987 under Section 6 read with Section 17(4) of the Act, was published in the Official Gazette, on 8-10-1987. The earlier writ petition was filed on 3-10-1987. In the said writ petition, a prayer was made that the respondents may be restrained from publishing the declaration under Section 6 in pursuance of notification under Section 4 of the Act of 1894. 2. The aforesaid writ petition along with other writ petitions came to be decided by a Division Bench of this Court, by a common judgment dated 2-8-1988. It was held that notice under Section 9 having been issued before publication of the declaration under Section 6, was invalid. 2. The aforesaid writ petition along with other writ petitions came to be decided by a Division Bench of this Court, by a common judgment dated 2-8-1988. It was held that notice under Section 9 having been issued before publication of the declaration under Section 6, was invalid. Until decision of the writ petition, declaration under Section 6 was published only in the Official Gazette dated 8-10-1987, and had not been published in the two daily newspapers circulating in the locality in which the land was situated, of which at least one had to be in the regional language and the Collector had also not caused public notice of the substance of such declaration, to be given at convenient places in the locality in which the land was situated. On a statement having been made on behalf of learned Counsel for the respondents, that before proceeding further in the acquisition matter, the publication of the declaration shall be carried out in terms of Section 6(2) of the Act and it is only after compliance with the provisions of Section 6 that the land in question will be acquired. The Court disposed off the matter, by quashing the notice under Section 9 of the Act, issued by the Collector, as noticed above, and directed the respondents to comply with the provisions of Section 6(2) of the Act, concerning publication of declaration within 2 months. The publication of declaration under Section 6 was not made within 2 months’ period, as fixed by the aforesaid judgment but ultimately, the declaration was published on 15th January, 1990, in a Hindi daily “Sima Sandesh” and in an another local daily “Lok Sammat 3. The petitioner has filed this writ petition challenging land acquisition proceedings once again. In the writ petition, the petitioner has raised very many grounds, challenging the issuance of notification under Section 4 of the Act as well as declaration under Section 6 of the Act of 1894. The principal contentions raised by learned Counsel for the petitioner are as under .(1) That the acquisition proceedings have been resorted to for the fulfillment of a public purpose, namely, construction of a sewerage plant. Said public purpose does not exist inasmuch as the scheme, for the implementation of which the land is being sought to be acquired has not yet been framed, therefore, no notification under Section 4 could have been published. Said public purpose does not exist inasmuch as the scheme, for the implementation of which the land is being sought to be acquired has not yet been framed, therefore, no notification under Section 4 could have been published. The issuance of notification is clearly colourable exercise of powers. For this proposition, learned Counsel relied on State of Tamil Nadu vs. A. Mohammed Yousef , (1991) 4 SCC 224 : ( AIR 1992 SC 1827 ) and a decision of this Court rendered in S. B. Civil Writ Petition No. 6399 of 1991--Bapiya vs. State of Rajasthan, dated 15-10-1992. .(2) That the alleged scheme for which the land in question is being acquired is against the Master Plan approved for Sriganganagar and, therefore, the land could not have been acquired for the implementation of the purported purpose disclosed in the notification. For this reason also re-course to acquisition proceedings in the present case is colourable exercise of power. Learned Counsel in support of his contention relied on Doman Paswan vs. State of Bihar, AIR 1988 Pat 341 . .(3) That the publication of declaration having not been made in accordance with the provisions of Section 6(2) either within the time prescribed by the Court in its judgment dated 28-8-1988 or, within the time prescribed by Statute under Section 6(1) of the Act; the acquisition proceedings stand lapsed and a belated compliance of Section 6(2) cannot revive the already lapsed acquisition proceedings. .(4) That, at any rate, the public purpose for which the land is being acquired, do not now exist, and, therefore; the land acquisition proceedings must be quashed. 4. Learned Counsel for the respondent, Mr. N. P. Gupta, raised a preliminary objection as to the maintainability of the writ petition. .(4) That, at any rate, the public purpose for which the land is being acquired, do not now exist, and, therefore; the land acquisition proceedings must be quashed. 4. Learned Counsel for the respondent, Mr. N. P. Gupta, raised a preliminary objection as to the maintainability of the writ petition. He contended that the validity of notification under Section 4 as well as declaration under Section 6 was in challenge in the earlier writ petition filed by the petitioner and all the contentions which have been raised or ought to have been raised as to the validity of notification under Section 4 and declaration under Section 6, cannot now be permitted to be raised again, in view of earlier decision of this Court in which only partial relief was granted to the petitioner by quashing notice under Section 9 of the Act and by giving direction to the respondents to comply with the provisions of Section 6(2) regarding publication of notice within one month. He relied on decision in Brij Mohan vs. State of Rajasthan (S. B. Civil Writ Petition No. 1922/90), decided by this Court on 14-9-1992. 5. Sofar as the preliminary objection is concerned, it holds good as far as contentions Nos. 1 and 2 are concerned, which to the validity of initiating land acquisition proceedings at all, by publishing notification under Section 4 of the Act. In Brij Mohan’s case (Supra), it has already been held in a writ petition arising out of these very land acquisition proceedings, that in view of decision dated 22-8-1988, the petitioner is precluded from raising issues concerning validity of notification under Section 4 or of declaration under Section 6 of the Act of 1894. However, that is only in relation to the stage of proceedings, so far as it is preceding the stage of compliance of provisions of Section 6 is concerned. Since, compliance of Section 6 was not made and the Court has directed the respondents to proceed further after complying with the provisions of Sub-section (2) of Section 6 in accordance with law; it cannot be said that whether the provisions of Section 6 have been complied with in accordance with law or not, were subject matter of decision in earlier writ petition. Since it was common ground that the compliance of provisions of Section 6 were not complete at the relevant time; the question whether the provisions of Section 6 have been complied with and whether the alleged compliance of the provisions of Section 6 is in accordance with law or not could neither have been raised nor decided at that stage. 6. Thecontention No. 3 raised by learned Counsel for the petitioner very much survive for decision. Learned Counsel for the respondents put reliance on Brij Mohan’s case (Supra), for the purpose of persuading this Court not to entertain the contention No. 3 as well. I am afraid, this contention of learned Counsel for the respondent cannot be accepted; firstly --the decision in Brij Mohan’s case (Supra) is not binding on the present petitioner. It cannot also be of any assistance to the respondents as a precedence as it appears from the judgment that the contentions which have been raised presently before me, were neither raised nor decided in Brij Mohan’s case (Supra). Therefore, the contention No. 3 will have to be examined and decided on merits. 7. Coming to the merits of the case, learned Counsel for the respondent AIR N. P. Gupta, urged that there is no requirement of law that publication of declaration under Section 6 should be made within the year of the publication of notification under Section 4 of the Act, as stipulated under Section 6(1) of the Act. He contends that the publication of declaration under Section 6 is relevant only for the provisions succeeding Section 6(2) and have no relevance to Section 6(1). In this context, he further contended that what is required by Section 6(1) is that a declaration has to be made under the signature of the Secretary to the Government within I year of the publication of notification under Section 4 and it docs not require that declaration should be published within 1 year. He contends that there difference between “making” of a declaration and ‘publication’ of a declaration. According to learned Counsel, ‘making of declaration’ is complete as soon as it is signed by the Secretary to the Government. He contends that there difference between “making” of a declaration and ‘publication’ of a declaration. According to learned Counsel, ‘making of declaration’ is complete as soon as it is signed by the Secretary to the Government. In the present case, the signature of the Secretary was, undoubtedly, placed on the declaration within I year of the date when notification under Section 4 was published and, therefore, the proceedings cannot be held to have lapsed merely because the ‘publication’ as required by Section 6(2), was made after lapse of 1 year from the relevant date. He further contended that Section 6(2) envisages publication of declaration by 3 different modes, namely --(i) in the official Gazette, (ii) in two daily newspapers, one of which must be in the regional language in the locality; and (iii) by Collector causing the public notice of the substance of such declaration, to be given at convenient places at the said locality. The ‘publication’ in any one mode is sufficient compliance for the purpose of Section 6(1), even if it he held that making of a declaration within its ambit includes its publication. It is apparent that the declaration was published in the Official Gazette on 8-10-1987, that is to say, within the time prescribed under Section 6(1) and merely because the ‘publication’ through other modes was carried out beyond period of one year from the relevant date, will not invalidate the land acquisition proceedings. He places reliance on Umesh Aggarwal vs. State of U.P., 1989 LACC 675 (All): (AIR 1989 NOC 160), Lt. K. Padmadas vs. State of Kerala, AIR 1992 Kerala 158 and on Shivgonda Balgonda Patil vs. The Director of Resettlement, AIR 1992 Bombay 72. He also referred to Mangal Singh vs. State of Haryana, reported in 1990 LACC 363 (Punj & Har). 8. Learned Counsel for the petitioner Mr. K. N. Joshi, joins issue with learned Counsel for the respondent about the aforesaid contention. He contends that ‘publication of a declaration’ in accordance with provisions of Section 6(2) is integral part of ‘making of a declaration’, and, it cannot be read in isolation and independent of provisions of Section 6(1). 8. Learned Counsel for the petitioner Mr. K. N. Joshi, joins issue with learned Counsel for the respondent about the aforesaid contention. He contends that ‘publication of a declaration’ in accordance with provisions of Section 6(2) is integral part of ‘making of a declaration’, and, it cannot be read in isolation and independent of provisions of Section 6(1). He contends that unless a declaration is published in accordance with the statutory provisions, it cannot be considered a declaration at all and, theretore, a declaration can be said to have been ‘made’, only when it is signed by the Secretary to the Government, as required by Section 6(1) and is made public by publication in accordance with the provisions of Section 6(2). According to Section 6(2), date of publication is the last of the dates of its publication and giving of public notice. Undisputedly, the last of the dates of publication in the present case fall much beyond the period of 1 year from the date of notification under Section 4, even after excluding the period during which the proceedings remained pending in this Court and further proceedings were stayed by the orders of this Court. In support of his proposition, learned Counsel for the petitioner relies on a decision of Supreme Court in The Collector (Distt. Magistrate), Allahabad vs. Raja Ram Jaiswal, AIR 1985 SC 1622 . The State of Madhya Pradesh vs. Vishnu Prasad Sharma, AIR 1966 SC 1593 Mahendra Lal Jaini vs. State of Uttar Pradesh, AIR 1963 SC 1019 and Babu Barkya Thakur vs. State of Bombay (now Maharashtra). AIR 1960 SC 1203 . 9. Since the controversy revolves round the true import of provisions of Section 6, it would be apposite to re-produce here relevant portion of Section 6 of the Act of 1894, as it stood when the impugned notification Annx. 4 and declaration Annx. 5 were issued, which reads as under:-“6. Declaration that land is required for a public purpose. 9. Since the controversy revolves round the true import of provisions of Section 6, it would be apposite to re-produce here relevant portion of Section 6 of the Act of 1894, as it stood when the impugned notification Annx. 4 and declaration Annx. 5 were issued, which reads as under:-“6. Declaration that land is required for a public purpose. .(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under Section 5A, Sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, Sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A, Sub-section (2): Provided that no declaration in respect of any particular land covered by a notification under Section 4, Sub-section (1), (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of Land Acquisition (Amendment) Act, 1984, shall be made from the date of publication of notification; or .(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of publication of the notification: Provided further that no such declaration shall be made unless the compensation to be awarded for such properly is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority .(2) Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the declaration), and such declaration shall state the district or other territorial division in which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. .(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing.” 10. It would be relevant and necessary to notice the scheme of the acquisition proceedings, as it stood originally and, as the same have come to stand after relevant legislative amendments from time to time; in order to understand the inter-relation of various provisions of the Act, how the matter stood before the amendment, and what was the mischief for which the earlier provision did not provide any remedy which was provided by the amendments. 11. Theacquisition proceedings commences with the publication of a notification under Section 4 of the Act whenever it appears to the appropriate Government that the land in any locality is needed or is likely to be needed, for any public purpose. Such notification was required to be published in two modes only, before the amendment of Section 4 by the Land Acquisition (Amendment) Act, 1984, came into force. The modes provided for publication were publication in the Official Gazette and publication of substance of the notification, in any convenient part of the locality. The notification under Section 4 authorises any officer of the Government, who is generally or specially authorised by the Government in this behalf ; to carry out preliminary investigation about the land in respect of which notification under Section 4 is issued. It also gives an opportunity to those persons who are having interest in the land covered by such notification to raise objections, if any, to the acquisition of their land before the appropriate authority. The next step in the acquisition proceedings is hearing of objections of any person interested in any land which has been notified under Section 4 by the Collector and submission of Collector’s report to the appropriate Government for its decision in terms of Section 5-A of the Act. The next step in the acquisition proceedings is hearing of objections of any person interested in any land which has been notified under Section 4 by the Collector and submission of Collector’s report to the appropriate Government for its decision in terms of Section 5-A of the Act. After decision of the appropriate Government on objections, the stage is reached where, if the appropriate Government is satisfied after considering the report, if any, made under Section 5-A that any particular land is needed for a public purpose or for a Company; a declaration is to be made to trial effect under the signature of a Secretary to such Government under Section 6(1) of the Act. Such declaration is required to be published in the Official Gazette and the Collector is required to cause public notice of the substance of such declaration to be given at the convenient places in the said locality in which the land is situated. Such declaration is to be treated conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be, as per the provisions of Section 6(3) of the Act. Thereafter, the Collector, after obtaining orders from appropriate Government to acquire the land under Section 7, and giving notice to persons interested, is to pass an award under Section 11, determining the compensation. The Government could proceed to acquire a land only after declaration under Section 6(1) has been made. After the declaration under Section 6 has been made, notice under Section 9 is required to be issued to the persons interested, stating that the Government intends to take possession of the land, that claim for compensation for all interest may be made to the Collector, Such notices are required to be issued to the occupant of the land as well as to any person who has been found to be a person interested in land during the land acquisition proceedings carried out hereinbefore, and the Collector is also required to issue a public notice to that effect. After the notices under Section 9 have been issued under Section 11 of the Act, the Collector is required to inquire into the objections, if any, which any person interested may have in pursuance of notice under Section 9 to the measurements made under Section 8 and, into the value of the land, on the date of publication of notification under Section 4; and into the respective interests of the persons, claiming compensation and, the Collector was to make an award under his hand. It may be noticed that in terms of Section 11 read with Sections 23(1) first and Section 24 seventhly of the Act, the date of publication of notification under Section 4 is the relevant date for the purpose of determining the market value of the land for the purpose of making an award about the compensation to be paid to the persons interested in the land. 12. It may also be noticed that the provisions of the Land Acquisition Act initially did not provide any time limit for making of a declaration under Section 6, after notification under Section 4 was published, and it also did not provide any time limit for making of an award, after declaration under Section 6 had been published. At the same time, once notification under Section 4 was published, in terms of provisions of Section 11 read with Section 23 of the Act, the compensation to be determined under the Act was pegged at the level of market price prevailing on the date of publication of notification under Section 4; irrespective of any time-lag between the notification under Section 4 and the actual acquisition, the determination and payment of compensation. This anomaly leads to many judicial pronouncements that though delay in making of declaration under Section 6 after publication of notification under Section 4 and making of award after publication of declaration under Section 6 by itself does not invalidate the land, acquisition proceedings, but is by itself or coupled with other circumstances may lead to inference that the issuance of notification under Section 4 followed by inordinate delay. in completion of land acquisition proceedings was a colourable exercise of powers to peg down the price of the land for the purpose of determining compensation at some future date, though no real need of acquiring the land existed, for initiating land acquisition proceedings, which may lead to striking down of the land acquisition proceedings. However, burden of proving that delay in completion of acquisition proceedings was inordinate and. unjustified and responsibility rests with the Government, lay on the person who challenges the acquisition proceedings on that ground. 13. In State of Madhya Pradesh vs. Vishnu Prasad Sharma, AIR 1966 SC 1593 , the issue of inordinate delay in completing the land acquisition proceedings in pursuance of notification under Section 4 came up before their Lordships of Supreme Court, in a matter where for a parcel of land, which was notified for acquisition under Section 4, successive declarations under Section 6 were made for acquiring different pieces of the parcel of land covered by notification under Section 4, Wanchoo, J. speaking for himself and on behalf of Mudholkar, J., observed (paras 13 and 14): The importance of a notification under Section 4 is that on the issue of such notification the land in the locality to which, the notification applies is in a sense freezed. This freezing takes place in two ways. Firstly, the market value of the land to be acquired has to be determined on the date of the notification under Section 4(1); (See Section 23(1) firstly). Secondly, under outlay or improvements on or disposal of the land acquired commenced, made or effected without the sanction of the Collector after the date of publication of the notification under Section 4(1) cannot be taken into consideration at all in determining compensation: (See Section 24, seventhly). Two things are plain when we come to consider the construction of Sections 4, 5-A and 6. The first is that the Act provides for acquisition of land of persons without their consent, and though compensation is paid for such acquisition; the fact however remains that land is acquired without the circumstances which must be borne in mind when we come to consider the question raised before us. In such a case the provisions of statute, must be strictly constructed as it deprives a person of his land without his consent. In such a case the provisions of statute, must be strictly constructed as it deprives a person of his land without his consent. Secondly, in interpreting these provisions the Court must keep in view on the one hand the, public interest which compels such acquisition and on the other interest of the person who is being deprived of his land without his consent On the other hand, as the compensation has to be determined with reference to the date of the notification under Section 4(1) the person whose land has to be acquired may, stand to lose if there is a great delay between, the notification under Section 4(1) and the notification under Section 6 in case prices have risen in the meantime Sarkar, ., in his concurring judgment repelling the contention, that successive declarations under Section 6 can be made so as not to put extra cost on the Government Exchequer, observed (para 3): If it is a justification of saying that a number of declarations can be made under Section 6 because otherwise the Government may have to pay more, it seems to me that it is at least an equal justification for saying that such declarations cannot have been contemplated by the Act because that would mean an avoidable deprivation of the owners of their beneficial enjoyment of lands till such time as the Government is able to make its plan. As the Act is an expropriatary Act, that interpretation of it should be accepted which puts the least burden on the expropriated owner In Krishna Iyyer vs. State of Madras, (1967) 2 Mad U 422, relying on the observations made in State of M.P. vs. Vishnu Prasad ( AIR 1966 SC 1593 ) (Supra), learned Judge of the High Court came to the conclusion that though Statute does not prescribe any time limit for issuing declaration under Section 6(1), after notification under Section 4(1) or far passing of an award at a subsequent stage; it does not deprive the aggrieved party of a remedy where undue prolongation of the proceedings has operated in an oppressive manner on the owner of the land. Similar view was taken by the High Courts of Gujarat, and Panjab & Haryana. 14. Similar view was taken by the High Courts of Gujarat, and Panjab & Haryana. 14. With the aforesaid back-drop, for the first time, through Land Acquisition (Amendment and Validation) Act, 1967 (hereinafter, called ‘the Act of 1967’), before the existing proviso to Section 6(1), the proviso in the following terms was inserted: Provided that no declaration in respect of any particular land covered by a notification under Section 4, Sub-section (1), published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, shall be made after the expiry of three years from the date of such publication. Provided further that By the above quoted proviso, the Act prohibited any declaration under Section 6 to be made after the expiry of three years from the date of publication of notification under Section 4. The Act of 1967 did not further provide any, time limit to complete the stage subsequent to making of declaration. In that state of affairs, the relevancy of declaration under Section 6 remained as serving conclusive proof of the fact that the Government is duly satisfied, after an enquiry at which parties concerned are heard, that the land in consideration is really needed for public purpose. In that view of the matter, the anomaly, for removing of which the amendment was made, remained unaffected. In the scheme of the Act, as it came to exist after the Act of 1967, while interpreting the provisions of Section 6(1), as amended , it was held that no time-limit has been prescribed for notification under Section 6 of the principal Act and what has been prohibited is confined to declaration, ‘made’ beyond the specified period. 15. Thereafter, the Land Acquisition Act was further amended, through the Land Acquisition (Amendment) Act, 1984 (hereinafter called ‘the Act of 1984’), which brought amendments in the provisions of Sections 4, 6 and 11 and also inserted Section 11-A, all of which have vital bearing on the question of scope of Section 6 in the light of the Scheme of the Act, as it exists now. For the present purpose, it would be necessary to analyse the provisions, as they existed before the Act of 1967; as they existed after the Amendment Act of 1967 but before the Act of 1984, and as they exist now, after the commencement of Act of 1984 --in comparable manner. 16. For the present purpose, it would be necessary to analyse the provisions, as they existed before the Act of 1967; as they existed after the Amendment Act of 1967 but before the Act of 1984, and as they exist now, after the commencement of Act of 1984 --in comparable manner. 16. The principal change in the Land Acquisition Act, which has been brought about by the amendments, for the present purposes, is that the Land Acquisition Act before the Amendment Act of 1967, did not provide any time-frame within which proceedings of acquiring the land and determining the compensation were to be completed, though the compensation amount was pegged to the prices prevailing on the date of issuance of notification under Section 4, which resulted in undue long delays in completion of land acquisition proceedings, to harassment and oppression of the owners, whose land was being acquired compulsorily. When the anomalous situation and inherent potentiality of abuse came to fore, through venous decisions of the Courts, to suppress the mischief due to lack of any provision about time-limit for completing the acquisition proceedings, which resulted in oppressive operation of statute due to pegging down the compensation payable to the market value existing on the date of notification under Section 4; in the first instance, the Legislative intervened and amended Section 6, by prohibiting making of any declaration after 3 years of the publication of notification under Section 4 of the Act. However, still no time-frame for completing the land acquisition proceedings after a declaration under Section 6 was made, was provided; not the relevance of prescribing a date which should be deemed to be date of publication of declaration under Section 6 was felt necessary to be provided. Declaration under section had only one r