Narain v. State of Rajasthan — 1993 DIGILAW 566 (RAJ)

Honble SHARMA, J.—The above numbered writ petitions are being disposed of by this common order as the facts of the cases are identical and the notifications for acquisition of land issued under sub-section (2) of Section 52 as well as Sub-section (1) of Section 52 of the Urban Improvement Act, 1959 (for short, the (JIT Act) in each of the aforesaid cases are the same. For the disposal of the above numbered writ petitions the facts of D.B. Civil Writ Petition No. 1124/1984 Narain V. State of Rajasthan and others alone shall be stated. (2). The petitioner Narain is the holder of agricultural lands bearing khasra Nos. 100, 101 and 102 measuring 12 bighas 6 biswas situated in the revenue village. Sewage Farm, Tehsil and District Jaipur. The said agricultural lands are situated within the boundaries of the Municipal limits of Jaipur City and earlier it was within the jurisdiction of the then Urban Improvement Trust, Jaipur and now under the jurisdiction of Jaipur Development Authority (for short, the JDA). The petitioner and others were holding agricultural lands in revenue villages Hathori, Bhojpura, Kishanpole and Bhawanishankarpura, Tehsil and District-Jaipur, which with the ever increasing organisations were included in the boundaries of Municipal limits of Jaipur City and were acquired for residential purposes from time to time. The petitioner and others were allotted lands situated in the then revenue village Sodala (also known as Sodawala) and Kartarpura and the present revenue village Sewage Farm was carved out in the year 1944 out of the aforesaid two villages. (3). A notification in Hindi bearing No. LA/U-3/1-C/79 dated October 8, 1979, was published in the Rajasthan Gazette Extra- ordinary Part VI (Kha) dated October 8/10, 1979, under signature of Land Acquisition Officer, UIT Jaipur by the order of the Governor to the effect that the lands mentioned there were required for the purposes of providing multipurpose schemes, i.e. for construction of houses for residential, commercial and industrial units, in Sector No. 1(c) Jaipur under Sec. 52(2) read with Sub-section (8) of the UIT Act. It covers the land in dispute also. In all 9765 bighas 8 biswas of land was sought to be acquired and the notification was issued in respect of that land and in the said lands the land of the petitioner and others was included. It covers the land in dispute also. In all 9765 bighas 8 biswas of land was sought to be acquired and the notification was issued in respect of that land and in the said lands the land of the petitioner and others was included. The petitioner and others on coming to know of the said notification filed objections before the Land Acquisition Officer inter alia on the grounds that the proposed acquisition was contrary to and in violation of the Master Plan in force in Jaipur city and as such it was contrary to the provisions of Section 72 of the UIT Act and that no scheme was sanctioned and/or notified for the area in question under Sec. 38 of the UIT Act. The Land Acquisition Officer, so far as the agricultural lands in question are concerned, said that the land was not fit for residential purposes, level of the area being lower and the recommendations of the Land Acquisition Officer dated September 4, 1980, were under consideration of the State Government for long time and in the meantime thfe UIT Jaipur was dissolved and Jaipur Development Authority Act, 1982 came into force under which the Jaipur Development Authority was constituted sometime in the year 1982. (4). Sometime in the year 1983 the JDA took a decision that there was need of another city level park as one already existing, namely, Ramniwas Garden, looking to the increase 0f urban population was not sufficient and a news item appeared to that effect in the Rajasthan Patrika dated May 30, 1983. As the park was proposed to be established in the land of the petitioner, he made a representation to the Governor of Rajasthan on June 4, 1983 at Mount Abu where the Governor was! camping during summer, but a notification No. F.5(14)/ TP/78 dated March 7, 1984 was published in the Rajasthan Gazette Extra-ordinary Part (Kha) dated April 20, 1984 under sub-section (1) of Sec. 52 of the UIT Act wherein the agricultural lands in question were ordered to be acquired. (5). The petitioner has challenged the aforesaid notification (Annr. 6) dated October 8, 1979 published in the Rajasthan Gazette Extra-Ordinary of even date issued under sub-section (2) of Sec. 52 of the UIT Act as well as the notification issued under sub-section (1) of Sec 52 of that Act (Annr. (5). The petitioner has challenged the aforesaid notification (Annr. 6) dated October 8, 1979 published in the Rajasthan Gazette Extra-Ordinary of even date issued under sub-section (2) of Sec. 52 of the UIT Act as well as the notification issued under sub-section (1) of Sec 52 of that Act (Annr. 9) dated March 7, 1984 which Was published in the Rajasthan Gazette extra-ordinary dated April 20, 1984, inter alia on the grounds, that the purpose stated in the earlier notification was different than the one stated in the latter notification issued under sub-section (1) of Sec. 52 of the UIT Act; the latter notification dated March 7, 1984 is mala fide on the ground that no proceedings for acquisition either under the UIT Act, or under the JDA Act or under the Rajasthan Land Acquisition Act, 1953 (for short the State Act) were ever taken for the purpose of establishing a city level park and the acquisition is contrary to the purpose shown in the Master Plan as in the Master Plan the land use was shown as agricultural, nurseries, orchard, poultries and dairies, and not public park or play-ground and as such acquisition is contrary to the Master Plan and is in violation of Sec. 31 of the UIT Act; framing of the scheme was a condition precedent and no scheme was sanctioned by the State Government. Other grounds were also raised including the challenge to the constitutionality of Section 52 of the UIT Act but during the course of arguments the said ground was not pressed and even otherwise the said provision has already been upheld by this court and we have already held that despite there being the State Act in force, the UIT Act being a special provision for he purpose, the acquisition of land under the UIT Act is permissible. (6). The petitions have been contested on behalf of the JDA which after its establishment as aforesaid has stepped in the shoes of the then UIT. Written arguments have been submitted by the parties. (7). We have heard learned counsel for the parties. The first contention of the learned counsel for the petitioner is that the acquisition of land under the UIT Act must have been in conformity with the Master Plan and there could be no acquisition for a purpose, for the land use, otherwise than one shown in the Master! Plan. (7). We have heard learned counsel for the parties. The first contention of the learned counsel for the petitioner is that the acquisition of land under the UIT Act must have been in conformity with the Master Plan and there could be no acquisition for a purpose, for the land use, otherwise than one shown in the Master! Plan. There appears to be no dispute that so far as the land in dispute is concerned, in the Master Plan, the land use has been shown for the purpose of agriculture, nurseries, orchard, poultries and dairies. It will further be seen that so far as recreation under which the parks including the city level park as one is sought to be established is concerned, it has been shown separately in the Master Plan. Similarly, in the Master Plan the residential/commercial area or in other words, the land use for these purposes has been shown separately. (8). Chapter II of the UIT Act deals with the preparation of Master Plan. Under Section 4 of the UIT Act, which deals with the contents of the Master Plan, the master plan shall define the various zones into which the urban area for which the plan has been prepared may be divided for the purposes of its improvement and indicate the matter in which the land in each zone is proposed to be used, and it shall serve as basic pattern of frame work within which the improvement schemes of the various zones may be prepared. Section 5 provides the procedure to be followed in the preparation of a master plan. The master plan has to be submitted to the State Government after preparation for its approval and the State Government may either approve the master plan without modifications or with such modifications as it may consider necessary or reject it with directions for the preparation of a fresh master plan. There is no dispute that a Master Plan for Jaipur city was prepared and it became final sometime in the year 1976. It was to remain in force upto the year 1991 and its operation has been extended by the State Government. (9). Chapter V of the UIT Act deals with framing of schemes. There is no dispute that a Master Plan for Jaipur city was prepared and it became final sometime in the year 1976. It was to remain in force upto the year 1991 and its operation has been extended by the State Government. (9). Chapter V of the UIT Act deals with framing of schemes. Under Section 31 of the said Act as and when the Trust decides to frame a scheme for any area or part of area for which it has been established, then if for and in respect of that urban area a master plan has been prepared and approved and is in operation, every scheme framed by the Trust in accordance with the provisions of Chapter V of the UIT Act shall conform to such master plan and shall not be framed so as to affect an alteration in the different zones defined by the master plan. A reference to Section 4 of the UIT Act has already been made in the earlier part of this order and it has already been said that in the master plan various zones have not only to be defined for which the master plan has been prepared, but the manner has also been indicated in which the land in each zone is proposed to be used. Thus, the land use in each zone has to be shown in the Master Plan. It is the case of the petitioner under para No. 18(vii) of the writ petition that while preparing the Master Plan the lands of village Sewage Farm were proposed to be used for public park and open spaces and on an objection of the petitioner and other inhabitants of the village Sewage Farm such objections were upheld by the State Government and the land use was kept agricultural, nurseries, orchards, poultries and dairies and not public parks and open spaces which is clear from the master plan as approved by the State Government on June 6, 1976. Though, no reply has been filed on behalf of the JDA and other respondents, but as said above, written arguments were filed and for the disposal of the present batch of the writ petitions we will take the written submissions as the reply to the writ petition. (10). Though, no reply has been filed on behalf of the JDA and other respondents, but as said above, written arguments were filed and for the disposal of the present batch of the writ petitions we will take the written submissions as the reply to the writ petition. (10). The first question is as to whether without framing a scheme under the provisions of the then UIT Act which was applicable before the constitution of the JDA under the JDA Act, the land could have been acquired without approval of the scheme under Section 38 of the UIT Act ?. There is no dispute between the parties that there is no approved scheme under Sec. 38 of the UIT Act for the area in dispute and it does appear from Annr. W/1 to the written submissions on behalf of the JDA that the Land Acquisition Officer had made his recommendations to the State Government under Sec. 52(3) of the UIT Act in the year 1980. From the aforesaid recommendations of the Land Acquisition Officer it will be clear that some decision appears to have been taken by the then UIT Jaipur keeping in view the master plan for development of the area as Sector No. 1 measuring 9765 bighas 8 biswas for multipurpose scheme on March 25, 1974. It also appears that in accordance with the provisions of Section 32(1) of the UIT Act the State Government at the request of the then UIT Jaipur had initiated action but the notification said to have been issued under Sec. 32(1) of the UIT Act was not produced on the ground that the file was not traceable. At any rate it is not even the case of the JDA or the State Government that even if any notification under sub-section (1) of Sec. 32 of the UIT Act was issued for the area in dispute, any scheme was approved and any notification under Section 38(1) of the UIT Act was issued by the State Government. It can, therefore, be said that there is no sanctioned scheme for the area in dispute under Sec. 38(1) of the UIT Act. The contention of the learned counsel for the petitioners is that framing of the scheme is a condition precedent, rather the scheme has to provide for acquisition of land. It can, therefore, be said that there is no sanctioned scheme for the area in dispute under Sec. 38(1) of the UIT Act. The contention of the learned counsel for the petitioners is that framing of the scheme is a condition precedent, rather the scheme has to provide for acquisition of land. In this connection learned counsel made a reference to the provisions of Chapter V of the UIT Act, more so, to Section 29(2)(a) which provides that the scheme may provide for all or any of the matters contained in clauses (a) to (u) of sub-section (2) and clause (a) is in respect of providing for acquisition of any land or other property necessary for or effected by the execution of the scheme. According to the learned counsel while framing the scheme various matters have to be taken into consideration as provided in Sec. 30 of the UIT Act and regard shall be had to (a) the nature and the conditions of such area and of neighbouring area as a whole, (b) the several directions in which its expansion appears likely to lake place, (c) the likelihood of the schemes being framed for other parts of the area; and (d) such other matters as may be prescribed. The scheme, as said above, has to conform to the Master Plan as required under Sec. 31 of the UIT Act. A right is vested in the persons to file objections to the scheme and the State Government may either approve the scheme without modifications, or with modifications, or may reject it. Learned counsel contends that unless a scheme is prepared providing for acquisition of land, the acquisition proceedings cannot be initiated. In support of his contention besides placing reliance on the aforesaid provisions of the UIT Act, learned counsel has referred to Section 52 of the UIT Act which deals with compulsory acquisition of land and moreso, to its sub-section(l). Under the aforesaid provision, as and when it appears to the State Government on a representation from the Trust that any land is required for the purpose of improvement or for any other purpose under that Act, it may acquire such land by publishing in the official gazette a notice specifying the particular purpose for which such land is required and stating that the State Government has decided to acquire the land in pursuance of that Section. Learned counsel emphasises on the words particular purpose and contends that it means the scheme framed under chapter V of the UIT Act and unless a scheme is framed, the land cannot be acquired on the representation of the Trust. In support of his contention that the framing of the scheme is a condition precedent under the relevant law for acquisition of land, learned counsel has referred to the case of State of Tamil Nadu and another Vs. A Mohammed Yousef and others (1). In the aforesaid case the Apex Court was dealing with a case of Madras State Housing Board Act, 1961 (17 of 1961). In that case the acquisition proceedings were started for obtaining land for the construction of houses by the Tamil Nadu Housing Board. The court dealt with various provisions of that Act and posed a question whether the acquisition proceedings can be initiated only after framing of a scheme and not earlier?. An argument was advanced by the learned Attorney General that having regard to the provisions of the Act of 1961 and other relevant considerations it must be held that the procedure in regard to the preparation of the scheme has to await the conclusion of the land acquisition proceeding, and it is only after the possession of the; land is delivered to the Board that its Engineers and other experts can go over the land, make necessary inspection and collect vital data on the basis of which scheme can be drawn up. Chapter VII of the Act of 1961 contained Sections 35 to 69 dealing with the framing of the scheme and the said Act laid down separate procedures for the different types of the schemes, according to the necessity and suitability. Some of them did not require acquisition of land, which is essential for constructing residential buildings under the housing scheme. The Apex Court said that initiation of the proceedings for acquisition has to await framing of a scheme. The Apex Court however said — "However, to avoid unnecessary controversy we are hereby clarifying the position that a ground based on the present judgment shall be available to the land owners only for such land acquisition proceedings, which are under challenge and are still pending decision". Learned counsel for the JDA has contended that it is not necessary to frame a scheme. Learned counsel for the JDA has contended that it is not necessary to frame a scheme. In other words, his contention is that framing of a scheme under Chapter V of the UIT Act was not a condition precedent to initiate acquisition proceedings. In support of his contention learned counsel placed reliance on the case of Gandhi Grah Nirman Sahakari Samiti Ltd. and others V. State of Rajasthan and others (2). In the aforesaid case the court was dealing with a case where the State Government had decided to develop an urban area. The court said that the framing of the scheme is mandatory only when the work is undertaken by the Trust and it is not mandatory when the State Government, in any of its departments, may decide to develop the urban area under the Act and Government to have a scheme framed under Chapter V of the said Act. The court referred to the provisions of Section 52(1) of the UIT Act moreso to the words when on a representation from the Trust or otherwise it appears to the State in that case it would not be necessary for the Government. The court said that the State Government had powers to acquire the land, otherwise than on the representation from the Trust. Learned counsel for the JDA has laid emphasis to the following para in the aforesaid case and on the strength of that para has contended that even in a case where on the representation of the Trust the State Government decided to acquire the land, framing of the scheme under Chapter V of the UIT Act is not a condition precedent. The Apex Court in para 9 said — "Mr. Shanti Bhushan, learned counsel appearing for the appellants, has contended that the framing of a scheme by the Trust under Chapter V of the Act is the sine qua non for invoking the provisions of Section 52 of the Act. According to him the State Government has no authority to acquire land under Section 52 of the Act unless the same is required for the execution of a scheme sanctioned under Chapter V of the Act. The crux of the argument is that the improvement in the urban area can only be carried out by executing the scheme framed under the Act and in no other way. We do not agree with Mr. Shanti Bhushan. The crux of the argument is that the improvement in the urban area can only be carried out by executing the scheme framed under the Act and in no other way. We do not agree with Mr. Shanti Bhushan. Under the scheme of the Act the improvement of the urban area can be undertaken by the Trust and also by any of the departments of the Government. The framing of the scheme becomes mandatory only when the work is undertaken by the Trust. The State Government, in any of its departments, may decide to develop the urban area under the Act and in that case it would not be necessary for the Government to have a scheme framed under Chapter V of the Act. The power of the State Government to acquire land under the Act has been designed to meet the scheme of the Act. Under Section 52 of the Act the land (fan be acquired by the State Government at the instance of the Trust, or a department of the Government or any prescribed authority. The plain language of Section 52(1) of the Act negates the contention raised by Mr. Shanti Bhushan. Where on a representation from the Trust or otherwise it appears to the Slate Government that any land is required for the purpose of improvement or for any other purpose under the Act it can acquire such land by issuing a notification under Section 52(1) of the Act. It is, thus, clear that the State Government has the power to acquire land either for the execution of the schemes framed by the Trust under Chapter V of the Act or for any other public purpose under the Act. No fault can be found with the procedure followed by the State Government in this case. The notification issued by the State Government under sub-section (1) of Section 52 of the Act specifically states that the land was being acquired for the construction of residential, commercial and administrative buildings. No fault can be found with the procedure followed by the State Government in this case. The notification issued by the State Government under sub-section (1) of Section 52 of the Act specifically states that the land was being acquired for the construction of residential, commercial and administrative buildings. The Government-having taken a policy decision to acquire land for the public purpose-was justified in issuing the notification under Section 52(1) of the Act in respect of the land in dispute." We fail to understand as to how the aforesaid extracted part of the judgment of the Apex Court in the tease of Gandhi Grah Nirman Sahakari Samiti Ltd. supports the argument of the learned counsel for the JDA, rather it can be said from the aforesaid judgment that the framing of the scheme is not mandatory if the land is being acquired for construction of residential or administrative buildings for the State Government in any of its departments. In the aforesaid case, the case of A. Mohd. Yousef (supra) of the Apex Court does not appear to have been cited. At any rate, the aforesaid case has not laid down that even in a case where the land is acquired by the State Government on the representation of the Trust, the framing of the scheme is not necessary. (11). A learned Single Judge of this Court in the case of Jaipur Nagar Griha Nirman Sahakari Samitiyan Association V. State of Rajasthan & others (3), was dealing with the identical provisions of the JDA Act and referring to the case law on the point the court said that when acquisition of land itself forms part of the scheme framed under the JDA Act, without a scheme the land cannot be acquired. In the case of Indore Development Authority V. Madan Lal and others (4), the Apex Court said that unless a draft scheme is approved by the State Government, it does not come in to force. In the case of Indore Development Authority V. Madan Lal and others (4), the Apex Court said that unless a draft scheme is approved by the State Government, it does not come in to force. The court further said that the approval of the draft scheme has to follow, but in the facts of that case, in order to avoid delay in the preparation of a fresh draft scheme the court reserved liberty to the Development Authority to invite objections and suggestions with regard to Scheme No. 72 in that case under Sec. 50(3) of the MP Nagar Tatha Gram Nivesh Adhiniyam, 1973 because the development was at the advance stage. It will be seen that so far as the present case is concerned when a notification under sub- section(2) of Sec. 52 of the UIT Act was issued objections were filed by the petitioner and others and one of the objections was that the land could not have been acquired without an approved scheme under Chapter V of the UIT Act, but the learned Land Acquisition Officer in his recommendations to the State Government held that the notification under sub-section (1) of Sec. 32 of the UIT Act had been issued on November] 22, 1978 and thereafter the period was extended upto December 31, 1981 in accordance with the provisions of the UIT Act and if no further extension is given by the State Government on the representation of the Trust and the scheme is finalised in accordance with the provisions of Sec. 32 of the UIT Act it will be possible to execute the scheme. What we mean to say is that the objections were taken by the petitioner to the notification issued under sub-section (2) of Section 52 of the UIT Act that framing of the scheme and its finalisation was the condition precedent to the initiation of acquisition proceedings. Similar objections have been taken in the writ petition also. (12). We have already said that the scheme, if any, even if framed, has to conform with the Master Plan as provided under Sec. 31 of the UIT Act. We have already said that so far as the area in dispute is concerned in the Master Plan for Jaipur for the years 1971 to 1991 which period has been further extended even now, the land use has been shown as, nurseries, orchards, poultry farm, and dairies. We have already said that so far as the area in dispute is concerned in the Master Plan for Jaipur for the years 1971 to 1991 which period has been further extended even now, the land use has been shown as, nurseries, orchards, poultry farm, and dairies. This entry is second in the Master Plan immediately after the first entry agriculture. The land use was not shown as recreational. We have already said that the petitioner has come out with the case that though in the master plan in the process of its being framed, it was proposed that the land in dispute will be reserved for parks etc. but on the objections being taken by them it was shown as nurseries etc. as aforesaid. A look at the notification Annr. 6 dated October 8, 1979 issued under sub-section (2) of Sec. 52 of the UIT Act will show that the land was sought to be acquired for multipurpose schemes i.e. for construction of houses for residential, commercial and industrial units. In the notification (Annr. 9) dated March 7, 1984 issued under Sub-section (1) of Sec. 52 of that Act the purpose has been given as for improvement of residential area. It can, therefore, be said that the purpose has been shown different than shown in the notification under sub-section (2) of Sec. 52 of the UIT Act. But we need not go into this question as the petitions succeed on the first ground. (13). So far as the argument of the learned counsel for the respondents that the notification under sub-section (1) of Sec. 52 of the UIT Act has been challenged after five years is concerned, all that may be stated is that in the recommendations made by the Land Acquisition Officer in the year 1980 it was said that so far as he area in dispute is concerned, it was not fit to be acquired for the purpose for which it was notified to be acquired in the notification issued under sub-section (2) of Sec. 52 of the UIT Act. Therefore, the petitioners could have thought that their lands may not be acquired. Therefore, the petitioners could have thought that their lands may not be acquired. Moreover, when the State Government itself slept for five years in issuing the notification under sub-section (1) of Section 52 of the UIT Act, the petitioners could have challenged that notification and while challenging that notification, the earlier notification issued under sub-section (2) of Sec. 52 of the UIT Act could have also been challenged. We find no delay in the present batch of the writ petitions. (14). The question of vesting the lands in the State Government free from all encumbrances after issue of the notification under sub-section (1) of Sec. 52 of the UIT Act could have arisen only if we would have upheld the acquisition, which we have not done. (15). Consequently, we allow all these writ petitions. The notification (Annr-VI) dated October 8, 1979 issued under Sub-section (2) of Section 52 of the UIT Act as well as the notification (Annr. IX) dated March 7, 1984 issued under sub-section (1) of Sec. 52 of that Act are hereby quashed. The acquisition proceedings are quashed. Costs made easy.