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2005 DIGILAW 332 (RAJ)

Surendra v. State of Rajasthan

2005-02-04

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-By this petition for writ a challenge is given to the notice dated 111.1990 issued by Land Acquisition Officer-cum-Sub Divisional Officer (Revenue), Sriganganagar and also the notification dated 22.07.1982 passed by State Government whereby the State Government withdrew its earlier notifications dated 010.1980 and 210.1980. 2. That facts necessary for adjudication of present petition for writ are as follows:-The State Government issued a notification dated 17.08.1978 under Section 4(1) of the Rajasthan Land Acquisition Act, 1953, (hereinafter referred to as "the Act of 1953") with a proposal to acquire land measuring 25 bighas situated in murabba No. 58/62. The notification under Section 6 of the Act of 1953 was also issued by the Government of Rajasthan on 10.05.1980 making an order for acquisition of land measuring 25 bighas in murabba No. 58/62. The State Government thereafter issued an another notification dated 010.1980 denotifying 19 bighas of land from acquisition proceedings. The land sought to be exempted from land acquisition proceedings was under the Khatedari of Shri Pyara Singh, Vichitra Singh and Swran Singh all sons of Varyam Singh. The details with regard to land which was withdrew from land acquisition proceedings under notifications dated 010.1980 were notified by the Government of Rajasthan by a separate notification dated 210.1980. The present petitioners purchased part of aforesaid 19 bighas of land by different instrument for sale which are placed on record as Annexures 7, 8 and 9. After sale of aforesaid land name of Ganesh Udhyog was entered into the revenue record and mutation was attested by Sarpanch, Gram Panchayat 4 ML on 25.04.1982. The predecessor in title Shri Pyara Singh informed the present petitioners in the month of February, 1991 to the effect that he received a notice dated 111.1990 from the Land Acquisition Officer-cum-Sub-Divisional Officer (Revenue), Sriganganagar with regard to determination of compensation for the land in question as the same was acquired by the State Government for the public purpose related to Krishi Upaj Mandi Samiti, Sriganganagar. The petitioners after getting the information referred above made requisite inquiry and found that notifications dated 010.1980 whereby land acquisition proceedings were withdrew with regard to 19 bighas of land was cancelled by the State Government by a notification dated 22.07.1992. The petitioners thereafter obtained a copy of notification dated 22.07.1982 and preferred the present writ petition before this Court on various grounds. 3. The petitioners thereafter obtained a copy of notification dated 22.07.1982 and preferred the present writ petition before this Court on various grounds. 3. A reply to the writ petition has been filed on behalf of the respondents and rejoinder to the same was also filed by the petitioners. 4. I have heard Counsel for the parties. 5. The contention of Counsel for the petitioners is that once by notification dated 010.1980 read with notification dated 210.1980 issued under Section 48(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act of 1894") having been issued, the proceedings right from the issue of Section 4 notification were washed away and there was subsequently no jurisdiction with the respondents to see to rescind the same by issuing of a subsequent notification dated 22.07.1982, accordingly the acquisition of land in question was wholly without jurisdiction. Per contra, Counsel for the State as well as Counsel for Kirshi Upaj Mandi Samiti, Sriganganagar urged that notification dated 010.1980 is required to be ignored as the same was passed without hearing to Krishi Upaj Mandi Samiti who is beneficiary of the land acquisition proceedings or for the purpose of whom land acquisition proceedings were initiated. It is also stated that notification issued by the Government of Rajasthan on 22.07.1982 does not bear any reason, therefore, the same is illegal. 6. At the outset I would like to state that it is not open for the State Government to challenge its own order as a respondent in the present case. The respondent State passed the order dated 010.1980 at its own wish and, therefore, State Government is having no authority as a respondent in the present petition to allege that the order dated 010.1980 was illegal. 7. Coming to the main question as to whether the State Government was right in proceeding with the land acquisition proceedings on basis of notification issued under Section 4(1) on 17.08.1978 and the notification dated 02.05.1980 under Section 6 of the Act of 1953, in-spite of the fact the land acquisition proceedings were withdrawn by notification dated 010.1980. The implication of denotification of the land from acquisition proceedings under Section 48 of the Act of 1894 is that the notification under Section 4 itself looses its existence with regard to that land. 8. The implication of denotification of the land from acquisition proceedings under Section 48 of the Act of 1894 is that the notification under Section 4 itself looses its existence with regard to that land. 8. This Court while dealing with question with regard to implication of issuance of a notification under Section 48 of the Act of 1894 in the case of Jasraj vs. State of Rajasthan & Ors., supported in AIR 1977 Raj 150 , held as under:- "The effect of an order under Section 48 of the Act is to completely take away Section 4 notification. Once that order i.e. under Section 48 of the Asct has been passed, result is that the Government has withdrawn from the acquisition land which formed the subject-matter of Section 4 notification. Thereafter if it wants for any reason to start acquisition proceedings, the only manner permissible in law is by issuing a fresh notification under Section 4 of the Act. It cannot be by resort to the power under Section 23 of the General Clauses Act revive and bring back Section 4 notification which was wiped away and ceased to exist when order under Section 48(1) of the Act was passed. The position under the law is that an order under Section 48 of the Act has the result of withdrawing the notification issued under Section 4. This means that there is a clean slate and if subsequently the Government wants to acquire the land it must start from the stage of issuing a fresh notification under Section 4 of the Act. It is not open to it, as Mr. Munshi seeks to urge, just to withdraw the order under Section 48 and maintain that by the withdrawal of order under Section 48 all the earlier proceedings including Sections 4 and 6 notifications have revived. If this argument was to be accepted it would have startling results. Government may in that case today issue an order under Section 48 of the Act which would in law be a notice to every one that notification under Section 4 has been withdrawn and many persons may deal with the said land legitimately and many rights may accrue. If this argument was to be accepted it would have startling results. Government may in that case today issue an order under Section 48 of the Act which would in law be a notice to every one that notification under Section 4 has been withdrawn and many persons may deal with the said land legitimately and many rights may accrue. And yet it would be open to the Government many years later by merely purporting to withdraw the order issued under Section 48 seek to take possession of the land about which Section 4 notification had been issued earlier." 9. In view of law laid down by this Court in the case of Jasraj (Supra), once the State Government decides to invoke powers vested in it by force of Section 48(1) of the Act of 1894 then it has the effect of putting the notification under Section 4 completely out of way. Meaning thereby the land does not remain subject to land acquisition proceedings under the notification issued earlier for its acquisition. If the Government subsequently requires the same land for some public purpose, then the proceedings for land acquisition are required to be initiated afresh. No new lease of life can be given to the notifications issued under Section 4 at earlier stage by cancelling or withdrawing the notification issued under Section 48 of the Act of 1894. In view of it the acquisition of land on basis of notification dated 17.08.1978 in present case is illegal. 10. I do not find any merit in the contention raised by the Counsel for Krishi Upaj Mandi Samiti that the notification issued under Section 48(1) of the Act of 1894 was nonest as the same was passed without hearing the Samiti. Section 48 of the Act of 1894 nowhere contemplates for such hearing required to be given to the beneficiary of the land acquisition proceedings. It is also well settled that no reason is required to be mentioned by the State Government in the notification issued under Section 48(1) of the Act 1894 though the reasons are required to be recorded in the proceedings giving rise to a notification under Section 48(1) of the Act of 1894. 11. In view of whatever stated above, this petition for writ succeeds. 11. In view of whatever stated above, this petition for writ succeeds. The impugned notification dated 22.07.1982 is quashed with the result the notification dated 010.1980 and the notification dated 210.1980 issued under Section 48 of the Act of 1894 would hold the field. The notice dated 111.1990 is also hereby quashed. It shall remain open for the respondents to proceed for the land acquisition proceedings afresh, if so required. Cost is made easy.