Ramesh Chandra v. State of Rajasthan — 1994 DIGILAW 687 (RAJ)

Honble SAXENA, J. — The petitioner has filed this writ petition for seeking relief in the nature of certiorari for quashing the notification dt.25.9.80 issued u/s.4 of the Rajasthan Land Acquisition Act, 1953, hereinafter referred to as the Act, notification dt.11.3.81 (Annex.1) issued simultaneoulsy u/s. 17(4) and Sec. 6 and the notice dated 30.6.81 issued u/s. 9(1) of the Act and to quash all the proceedings initiated against him in pursuance of the said notification and for issuance of writ of prohibition restraining the respondents from taking possession of his land. (2). The petitioner alleges that he is the Khatedar and in cultivatory possession of agricultural land comprising of Kila Nos. 6/11,7 to 14, 15/11, 16/11, 17 and 24 and 25/11 total area eighteen bighas of square No.49 (Old No.36) situated in chak 1A Minor, Tehsil Sriganganagar. The Dy. Secretary,Local Self Govt.,Raj., Jaipur issued a notification u/s.4 (1) of the Act on 25.9.80, published in the Rajasthan Rajpatra, manifesting the intention of the State Govt. to acquire the aforementioned land of the petitioner alongwith other lands of so many other persons. The petitioner claims that no notice was issued to him in respect of the said notification. However, a notice inviting objections u/s.5(A) of the Act was received by one Ramesh Kumar and it was through him that the petitioner knew that the objections were being invited from the persons interest in the land purported to be acquired by the State Govt. The petitioner,therefore,filed his objections u/s. 5-A of the Act on 31.12.80 before the S.D.O.-cum-Land Acquisition Officer, Sri Ganganagar. Another notification (Annex.1) u/s.17 (4) of the Act came to be issued on 11.3.81 and the same was published in the Rajasthan Rajpatra on 14.5.81 i.e. more than after two months. The said notification proclaimed that the land already notified in the notification issued u/s.4 of the Act is required for the public purpose and in turn to be placed at the disposal of the municipality, Sri Ganganagar. By the said notification, the State Govt. by exercising powers u/s.17 (4) further dispensed-with the enquiry u/s.5-A of the Act. The notification (Annex.l) also made a declaration u/s.6 of the Act that the lands enumerated & referred to in the notification are necessary to be acquired for expansion of urbanisation. In pursuance of notification Annex. 1, a notice dt. By the said notification, the State Govt. by exercising powers u/s.17 (4) further dispensed-with the enquiry u/s.5-A of the Act. The notification (Annex.l) also made a declaration u/s.6 of the Act that the lands enumerated & referred to in the notification are necessary to be acquired for expansion of urbanisation. In pursuance of notification Annex. 1, a notice dt. 30.6.81 (Annex.2) u/s.9(l) of the Act was also issued by the Land Acquisition Officer calling upon the affected and interested persons to file their claims for compensation by 23rd July,1981. The petitioner alleges that the said notification Annex,2 was also not served upon him. The petitioner challenges the notification dt.ll.3.81(Annex.l) mainly on the ground that the State Govt. has not applied its mind nor formed its opinion u/s.17(1) of the Act, that it was a case of emergency and that the land enumerated in notification issued u/s.(4) of the Act is waste or arable land. On the other hand, notification Annex.l is conspicuously silent about the aforementioned basic ingredients. He asserts that the provisions of Sec.l7(4) of the Act are subject to the provisions of sub sec. (1) of sec. 17 and in the notification Annex. 1 and that it has also not been mentioned that it has been issued by the State Govt. under the purported exercise of its powers u/s.17 (1) of the Act. The petitioner,therefore,maintains that the notification Annex. 1 is ultravires of the provisions of the Act and that the purpose for which the land is being acquired i.e. for expansion of the urbanisation, cannot be termed as an urgent or emergent purpose. The petitioner reiterates that his land sought to be acquired is neither a waste land nor arable land; because the Collector, Sri Ganganagar has already converted one parcel of his land, situated just adjacent to the notified land to be acquired, for the purpose of construction of a cinema hall vide his order dated 16.11.78(Annex.3) and that in pursuance thereof, he has already constructed the skeleton of the cinema hall. The petitioner maintains that the issuance of a composite notification issued u/s.l7(4) dispensing-with the enquiry u/s.5A and making declaration u/s.6 of the Act is also bad in law. The petitioner maintains that the issuance of a composite notification issued u/s.l7(4) dispensing-with the enquiry u/s.5A and making declaration u/s.6 of the Act is also bad in law. The petitioner further reiterates that notification u/s.l7(4) of the Act (Annex.1)- was issued on 11.3.81,whereas it was published in the Rajasthan Rajpatra on 14.5.81 with a gap of more than two months and that this very fact shows that it was not at all a case of emergency and that the notifications dt.25.9.80 and 11.3.81 are bad,invalid and illegal in as much as those have been issued in total violation of the principles of natural justice, in contravention of the provisions of the Act and also ultfavires of the articles 14,21 and 300 A of the Constitution. The petitioner,therefore,prays for relief of certiorari and prohibition. (3). This court by its ad interim order dt.3.8.81 ordered that the petitioner shall not be dispossessed from the land in dispute,which was confirmed on 10.9.92. (4). It is significant to note that the respondents,despite ample opportunities, have not cared to file any reply to the writ petition. (5). I have heard Mr.L.M. Lodha,learned counsel for the petitioner and Mr. H.R. Panwar, Addl. G.A. at length and carefully perused the record. (6). Mr.L.M.Lodha has vehemently contended that the notification dt.11.3.81 (Annex.l) issued by the State Govt. in the purported exercise of its powers u/s.l7(4) dispensing with the compliance of requirements of Sec. 5 A and making declaration u/s.6 of the Act is bad in law and ultravires of the provisions of the Act in as much as it does not speak that there was any urgency and that the land sought to be acquired is waste or arable land. The State Govt. has thus not applied its mind to enable it to take a valid recourse to the provisions of Sec. 17 (4) of the Act. According to him, the State Govt. has also not made any notification u/s.l7(l) of the Act and since the powers of the State Govt. u/s.l7(4) are subject to the provisions of sub secs.(l) and (2) of Sec.17 of the Act, the impugned notification dt.11.3.81 (Annex.l) is patently illegal and ultravires of the provisions of the Act. Mr.Lodha has placed reliance on the following cases: "Raja Anand Brahma Shah V. The State of U.P.(l),Dora Phalauli V. State of Punjab (2), Smt.Dhanni & Ors. V. State of Raj. (3) and Dr. Mr.Lodha has placed reliance on the following cases: "Raja Anand Brahma Shah V. The State of U.P.(l),Dora Phalauli V. State of Punjab (2), Smt.Dhanni & Ors. V. State of Raj. (3) and Dr. Laxmi & Ors. V. The State of Raj.(4). (7). On the other hand, Mr. H.R. Panwar,learned Addl. G.A., despiteumpteen opportunities, has not filed any reply. He has contended that the opinion of the State Govt. u/s.l7(4) of the Act pre-supposes that it was a case of emergency; that the land to be acquired by it was waste or arable land and that the same can not be challenged in the court. He has however clearly conceded that in notification dt. 11.3.81 Annex.l, there is no mention of the purported exercise of the State Govts power u/s.l7(l) of the Act. According to him, since the notification has been issued in purported exercise of power u/s.17 (4) of the Act, it should be presumed that it is a case of urgency and that the land sought to be acquired is waste or arable land and, as such, the notification Annex.l is neither illegal nor bad nor ultravires of the provisions. In support of his contention, Mr. Panwar has cited the following cases: Murari Lal Gupta Vs. The State of Punjab (5), Sellappa Gounder and anr. Vs. State of Madras (6), State of U.P.Vs.Smt. Pista Devi & Ors. (7); and Ajit Singh etc. Vs. State of Raj. & Ors.(8)." (8). I have given my thoughtful consideration to the rival contentions of the parties. A bare perusal of notification dt.11.3.81 (Annex.l) reveals that the State Govt. has proclaimed that the land already notified in its previous notification issued u/s.4 of the Act, was required for public purpose for being placed at the disposal of the Municipal Board, Sriganganagar for expansion of urbanisation and that in exercise of its powers u/s.17(4), it has dispensed- with the enquiry envisaged u/s.5A of the Act. The State Govt. has also made a declaration u/s.6 that the land is required for the public purpose. However, there is no mention at all that Annex.l has also been issued by the State Govt. under its purported exercise of Sec. 17(1) of the Act, which deals with the special powers in case of emergency. Sub Sec.(l) of the said section clearly lays sown that in cases of urgency,whenever the State Govt. However, there is no mention at all that Annex.l has also been issued by the State Govt. under its purported exercise of Sec. 17(1) of the Act, which deals with the special powers in case of emergency. Sub Sec.(l) of the said section clearly lays sown that in cases of urgency,whenever the State Govt. so directs the Collector though no award has been made final u/s.12 of the Act,may on the expiration of fifteen days from publication of the notice mentioned in Sec.9 (1), take possession of any waste or arable land needed for public purpose and that such land shall thereupon vest absolutely in the State Govt. from all encumberance. Sub Sec.(4) of Sec.17 of the Act in most unambiguous and clear terms states that in case of any land to which in the opinion of the State, the provisions of Sub Sec. (1) or sub sec.(2) are applicable,the State Govt. may direct that the provisions of Sec.5A shall not apply and if it does so direct,a declaration may be made u/s.6 in respect of the land at any time after the publication of the order under sub section (1) of Sec.4. Therefore , it is abundantly apparent that the State Govt. must disclose its satisfaction as to the urgency in the notification issued under sub sec.(4) of sec.17 and that there must be something on record so as to enable the State Govt. to form a reasonable opinion as to an urgency. The provisions of S.17 (4) can only be pressed into service in case of a land to which in the opinion of the State Govt. ,the provisions of Sub.Sec.(l) apply namely in cases of urgency and the land being waste land or arable land. Therefore, the opinion of the State as required u/s.l7(l) of the Act is sine qua non for dispensing with the inquiry u/s.5A and for making a declaration u/s.6 that the land is needed for a public purpose. (9). This is true that the States power to decide urgency is purely an executive matter left with the State Govt. & the Govts satisfaction as to urgency for a public purpose is presumed. But this does not mean that the State has an unfettered power to flout and ignore the specific provisions of law and exercise the powers in an arbitrary and wanton manner. For invoking the provisions of Sec.l7(4), the State Govt. & the Govts satisfaction as to urgency for a public purpose is presumed. But this does not mean that the State has an unfettered power to flout and ignore the specific provisions of law and exercise the powers in an arbitrary and wanton manner. For invoking the provisions of Sec.l7(4), the State Govt. is first required to form an opinion that it is a case of urgency and that the land to be acquired is waste or arable land & needed for public purpose. In the instant case, the notification Annex.1 has neither been issued by the State Govt. under the purported exercise of its power u/s.l7(l) of the Act nor it has been mentioned therein that it is a case of emergency or that the land sought to be acquired is either a waste or arable land. Thus the basic pre-requisites required for invoking the powers u/s.l7(l) of the Act are conspicuously missing in notification Annex.l. Therefore, by no stretch of imagination, it can be presumed that the State Govt. has applied its mind and come to a subjective satisfaction that it was a case of urgency and the land needed to be acquired was waste land or arable land. (10). In Raja Anand Brahma Shahs case(supra), the Apex Court has held that the opinion of the State Govt. u/s.l7(4) can be challenged as ultravires in a court of law if it could be shown that the State Govt. never applied its mind to the matter u/s.l7(l) of the Act or that the action of the State Govt. was malafide. In that case, the land under acquisition was not actually a waste or arable,but the State Govt. had formed its opinion that the provisions of Sec. 17 were applicable. It was held that the notification u/s.l7(4) was ultravires and that all proceedings taken by the Land Acquisition officer subsequent to the issue of notification u/s.6 were illegal and without jurisdiction. (11). In Dora Phalaulis case (supra) in the notification u/s.17 dispensing with the right of land owners to file objections,it was neither mentioned that the land proposed to be acquired was waste or arable land nor was it stated that there was any urgency to take recourse to Sec. 17 (4). The Apex Court held that such notification was liable to be struck down and that mere direction of the State Govt. The Apex Court held that such notification was liable to be struck down and that mere direction of the State Govt. to the Collector therein to take action on the ground of urgency was not a legal and complete fulfilment of the requirement in law. In the case in hand, the notification Annex.l is completely silent as to whether in the opinion of the State Govt., it was a case of urgency or that the land sought to be acquired is waste or arable land. Therefore, in absence of the basic ingredients required for dispensing with the valuable right of the petitioner of filing objection and hearing thereon u/s 5A of the Act, the State Govt. was not competent to take shelter of the provisions of Sec.17 (4) of the Act. (12). In Smt. Dhannis case (supra), this Court has reiterated that under sec.17 (4),the State Govt. may dispense with the compliance of the provisions of Sec.5A only when it forms the opinion u/s.l7(l) of the Act that it is a case of urgency and the land is waste or arable. In that case, though the notification was issued by the State Govt. under its purported exercise u/s.17 (1) r/w 17(4) but the said notification was completely silent as to whether the land was waste or arable land indicating that the question whether the land was waste or arable was not even present to the mind of the State Govt. when it issued the impugned notification. Therefore, following the law laid down by the Apex Court in Dora Phalaulis case (Supra),it was held that the State Govt. did not apply its mind u/s.l7(l) of the Act and that the said notification was ultravires. It may be pointed out in the case on hand, the State Govt. has not even issued the notification Annex.1 in exercise of its powers u/s.l7(l) nor it has been mentioned therein that it was a case of urgency or that the land sought to be acquired is waste or arable land. Therefore, it can neither be inferred nor presumed that the State Govt. had its subjective satisfaction that it was a case of urgency. Hence, the notification Annex.l is clearly ultravires of the provisions of Sec.17 (1) of the Act. (13). In Dr. Laxmis case(supra), the land sought to be acquired was in the compound of the residential bungalow and thus a building site. had its subjective satisfaction that it was a case of urgency. Hence, the notification Annex.l is clearly ultravires of the provisions of Sec.17 (1) of the Act. (13). In Dr. Laxmis case(supra), the land sought to be acquired was in the compound of the residential bungalow and thus a building site. It was held that the land was neither waste nor arable and, as such, the notification issued u/s. 17(1) (4) dispensing with the enquiry u/s.5A of the Act was ultravires. In that case also, there was no mention of urgency for taking recourse to Sec.l7(4), though the notification was also issued u/s.17(1) of the Act. The D.B. of this court held that the said notification was void and ultravires of the provisions of Sec.17 of the Act. (14). In Murari Lal Guptas case(supra),relied upon by the learned Addl. G.A., it was held by the Punjab High Court that a combined reading of Sub Seel and 4 of Sec.17 would show that whether the urgency existed or not was a matter solely for determination of the Govt. and that it was not a matter for judicial review. But this view has been dissented and reversed by the Honble Supreme Court in Dora Phalauls case(supra). (15). In Sellappa Gounders case (supra), the Madras High Court has held that the opinion of the State Govt. about emergency u/s.17 is challengeable only when the Govt. acts malafide or does not apply its mind to the matter. I respectfully agree with this proposition of law but as mentioned earlier, in the instant case, neither notification Annex.l has been issued u/s.17(1) of the Act not it has been mentioned therein that it was a case of urgency or that the land sought to be acquired was waste or arable land. Therefore, this case cited by Mr.H.R.Panwar instead of helping the respondents,supports the case of the petitioner. (16). In Smt.Pista Devis case (supra), the State Govt. by invoking its powers u/s.17 (1) dispensed with the enquiry in respect of acquisition of land at the time of publication of notification u/s.4. There was no malafide on the part of the Govt. Officers. However, there was a delay of one year between publication of notification u/s.4 and publication of declaration u/s.6 of the Act. It was held that this delay itself was not sufficient to render the decision of the State Govt. There was no malafide on the part of the Govt. Officers. However, there was a delay of one year between publication of notification u/s.4 and publication of declaration u/s.6 of the Act. It was held that this delay itself was not sufficient to render the decision of the State Govt. taken u/s.17(1) and (4) of the Act improper or illegal. Therefore, mere delay in publication of notification in the Gazette is not sufficient to hold that the matter is not of urgency. But in this case, notification Annex. 1 itself is silent about the urgency, hence the principle of law propounded in Pista Devis case(Supra) has no bearing. (17). The last case relied upon by Shri Panwar is that of Ajit Singh(supra). In that case,the notification for acquisition issued u/s.l7(4) of the Act was challenged on the ground that the notices u/ss.4 and 5 of the Act were not served properly on the petitioner and that hearing u/s.5A of the Act was not given to them. The land was required for Housing Board for construction of houses in city. In such circumstances, it was held that the High Court should not interfere under Art.226 of the Constitution, for every mistake or every violation of law and that it can take judicial notice of the housing problem in the towns and cities and as such notification was held to be valid. It will suffice to add that in that case, the notification was not challenged on the ground that it lacked the basic requisites provided in Sec.l7(l) of the Act, to wit that case of urgency or that the land to be acquired was waste or arable. Therefore,the facts of that case are distinguishable with the facts of the case on hand and the proposition of law laid down therein renders little assistance to the respondents. (18). Therefore, keeping in view the well crystalised proposition of law regarding interpretation of provisions of Sub Sec. (1) and (4) of Sec. 17 of the Act, I am of the considered opinion that the requisite conditions for invoking the special powers u/s.17 of the Act are lacking in this case and , as such, the notification issued u/s.17 (4) of the Act dispensing with the provisions of Sec.5A and also declaration u/s.6 are ultravires of the provisions of the Act and, as such, the same is per se illegal and deserves to be quashed. (19). As regards the service of notification dt.25.9.80 u/s.4 (1) of the Act, it will suffice to add that the petitioner very well knew about the said notification and also submitted his objections u/s.5A. Therefore, on that ground the notification issued u/s.4(l) cannot be quashed. (20). In the premise of the above discussion,this writ petition is partly allowed and the notification dt.11.3.81 Annex.l as also the notice dt.30.6.81 issued u/s.9(l) of the Act (Annex.2) and the subsequent proceedings taken by the respondents are hereby quashed and they are restrained from taking possesion of the petitioners land. However,the respondents shall be at liberty to take fresh action,if any, in pursuance to the notification issued u/s.4(l) of the Act in accordance with law.