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2002 DIGILAW 811 (RAJ)

Champa Lal v. The State of Rajasthan

2002-04-19

SUNIL KUMAR GARG

body2002
JUDGMENT 1. . -The above writ petitions are being decided by this common order as in both the writ petitions facts are similar in nature and the questions raised are also similar to some extent.FACTS OF WRIT PETITION NO. 3706/92-3. This writ petition under Article 226 of the Constitution of India has been filed by the petitioners against the respondents on 2-8-91 with a prayer that by an appropriate writ, order or direction notification dated 15-4-91 (Annex.6) at page 40 issued under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act of 1894) and subsequent notices Annex. 7A, 7B and 7C be quashed and further entire proceedings for acquisition being taken by the respondent No.2 be also quashed. It arises in the following circumstances i) The present writ petition relates to the notices issued on 27-6-91 alleged to be issued under Section 9 of the Land Acquisition Act, 1894 intending to take over 1 bighas and 19 biswas of land of Khasra No. 759 from various co sharers including the petitioners Nos. 1, 2 and 4. ii) The petitioners received notices dated 2.6-90 issued by the respondent No. 2 the land Acquisition Officer, Salumber alleging that the notification under section 4 of the Act of 1894 has been issued by the Government on 7-3-89 intending acquisition of land for the construction of Mandi yard, Kherwada of Krishi Upaj Mandi Samiti, Udaipur. The petitioners were required to submit objections if any. iii) The petitioners submitted a reply to the notice and submitted that the land in question of Araji No. 759 was not available for acquisition as agricultural land and that the petitioners had raised construction over the same after due permission from the Panchayat, Kherwada and the land cannot be acquired by the Government. Copy of the reply of the petitioners is Annex. 4 at page 28. iv) During the land acquisition proceedings, the petitioners and some other persons raised objections and they were decided by respondent No. 2 through order dated 8-2-91 (Annex.5). But objections raised by the petitioners were wrongly rejected. v) It may be stated here that two fold arguments, were raised before respondent No. 2 by the petitioner : a) That since the land in dispute has been converted in Abadi, therefore, it should not be acquired. But objections raised by the petitioners were wrongly rejected. v) It may be stated here that two fold arguments, were raised before respondent No. 2 by the petitioner : a) That since the land in dispute has been converted in Abadi, therefore, it should not be acquired. b) That since construction had already been raised over some portion of the land, therefore, that portion should be released from acquisition. Both the arguments were rejected by the respondent No. 2 (Land Acquisition Officer) through order dated 8-2-91 (Annex. 5). vi) In this writ petition, the argument about conversion of land has not been challenged and thus findings in this respect recorded by the respondent No. 2 in his order dated 8-2-91 are upheld, but the main case of the petitioners is that since they have raised construction over some portion of the land after due permission, therefore, the land could not be held to be available for acquisition. Hence, issuance of notification dated 15-4-91 under Sections 6 of the Act of 1894 (Annex.6) be quashed. ' 4. Reply to the writ petition was also filed by the respondents and the resfondents No. 3 in its reply has admitted that the respondents may not have objections if only the constructed area is released to the petitioners so as to complete the development work.5. It has been submitted by the learned counsel for the petitioners that without raising legal objection about validity of notification issued under Section 6 of the Act of 1894, he will confine his argument only to the extent that the portion of acquired land where construction had already been raised be released from acquisition or in other words the land over which the construction was made be excluded from the acquisition. For rest land, if it is acquired, he has no objection.6. Since this fact has not been controverted/ disputed by the learned counsel for the respondents, therefore, to that extent, the petitioners are entitled to get relief in the writ petition.7. The next question to be considered is whether the portion of the land over which construction has been made can be excluded from acquisition or not?8. On this point, the Hon'ble Supreme Court in the case of Krishi Upaj Mandi Samiti v. Makrand Singh and Ors. reported in (1995) 2 SCC 497 has also excluded such type of land from acquisition where construction has been raised. On this point, the Hon'ble Supreme Court in the case of Krishi Upaj Mandi Samiti v. Makrand Singh and Ors. reported in (1995) 2 SCC 497 has also excluded such type of land from acquisition where construction has been raised. In this regard, judgment of Hon'ble Supreme Court in the case of Sube Singh v. State of Haryana reported in (2001) 6 JT (SC) 578 may also be seen.9. Thus, the portion of the land over which construction has been made can be excluded from acquisition and from this point of view also, submissions raised by the learned counsel for the petitioners should be accepted.10. When this being the position, the writ petition filed by the petitioners is liable to be, allowed and both the counsel have agreed that so far as point as to be in what portion of the land in question, construction has been made is concerned, that objection be decided by respondent No. 1.For the reasons mentioned above, this writ petition is allowed in the manner that judgment dated 8-2-91 (Annex.5) passed by the respondent No.2 (Land Acquisition Officer, Salumbar) is quashed in so far as it relates to the land over which the petitioners had raised construction and the notification dated 15-4-91 (Annex.6) qua the petitioner for portion of the land over which construction has been raised is also quashed. The petitioners are directed to file their objections of afresh within a period of one month from today before respondent No.1 and the respondent No.1 shall decide the same expeditiously preferably within a period of 3 months from the date of presentation objections after giving an opportunity of hearing to the petitioners.While admitting writ petition, this Court on 3- 12-91 ordered that the petitioners would not be dispossessed from the land in question and that order was confirmed by order dated 10-4- 95 till decision of the writ petition. In these circumstances, it is further ordered that till the objections are decided by respondent No. 1, the petitioners would not be dispossessed from the land in question.FACTS OF WRIT PETITION NO.3440/9111. In these circumstances, it is further ordered that till the objections are decided by respondent No. 1, the petitioners would not be dispossessed from the land in question.FACTS OF WRIT PETITION NO.3440/9111. In this writ petition, it has been submitted by the petitioner that vide order dated 8-2-91 (Annex.8) objections raised by the petitioner were accepted by respondent No. 2 (Lant Acquisition Officer) and it was also observed by the respondent No. 2 that the land under acquisition pertaining to Araji No.762/55 and 763/2.5 was converted into Abadi land. In the operative portion of order dated 8-2-91, it was further observed that the land which has been converted into Abadi land, was to be left while issuing notification under Section 6 of the Land Acquisition Act, meaning thereby that the land converted into Abadi was not to be acquired. But in the notification dated 15-4-91 (Annex.9) which was issued under Section 6 of the Act of 1894, such type of exclusion is not there and, therefore, in this writ petition, the notification dated 15-4-91 issued under Section 6 of the act of 1894 (Annex.9) and subsequent notice dated 9-7-91 (Annex.10) issued under Section 9 of the Act of 1894 have been challenged and it has been prayed that the notification dated 15-4-91 (Annex.9) and notice 9-7-91 (Annex.10) be quashed.12. Since there is clear cut finding of the Land Acquisition officer in his order dated 8-2-91 that the land which has been converted into abadi was not to be acquired, therefore, notice dated 15-4-91 under Section 6 of the Act of 1894 should have been issued in compliance of the order dated 8-2-91 (Annex.8). This position has not been controverted/disputed by the learned counsel for the respondents. Thus, the notification dated 15-4-91 (Annex.9) issued under Section 6 of the Act of 1894 is in conflict with the order dated 8-2-91 (Annex.8) and hence notification Annex.9) issued under Section 6 of the Act of 1894 is liable to be quashed in so far as it relates to the petitioner and this writ petition is liable to be allowed. Thus, the notification dated 15-4-91 (Annex.9) issued under Section 6 of the Act of 1894 is in conflict with the order dated 8-2-91 (Annex.8) and hence notification Annex.9) issued under Section 6 of the Act of 1894 is liable to be quashed in so far as it relates to the petitioner and this writ petition is liable to be allowed. For the reasons mentioned above, this writ petition No.3440/91 is allowed and the notification dated 15-4-91 (Annex.9) issued under Section 6 of the Land Acquisition Act of 1894 is quashed in so far as it relates to the petitioner Ramesh Chander and simultaneously notice dated 9-7-91 (annex.10) issued under Section 9 of the Land Acquisition Act, 1894 is also quashed.With the above observations, the writ petitions No. 3706/91 and 3440/91 stand allowed. No order as to costs.Petitions allowed. *******