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2006 DIGILAW 2376 (PNJ)

Nawal Kishore Batra v. State of Haryana

2006-05-30

ASHUTOSH MOHUNTA, MAHESH GROVER

body2006
JUDGMENT Mahesh Grover, J. - The petitioners have challenged the acquisition proceedings initiated by the respondents. A notification under Section 4 of the Land Acquisition Act, 1894 (for short, the Act) was issued on 16.6.2003 by Financial Commissioner and Principal Secretary to Government of Haryana, Revenue Department expressing the intention of the government to acquire land for a public purpose, namely, "for development/beautification on the northeast of "Raja Harsh Ka Tilla", a centrally protected monument at Thanesar by the Government of India, Archaeological Survey of India". The petitioners filed objections under Section 5-A of the Act on 11.7.2003. Thereafter, the government issued notification under Section 6 of the Act. 2. The case of the petitioners, in nut-shell, is that there has been violation of Section 4 of the Act, in-as-much-as, substance of the notification was not affixed at a proper place and this has resulted in gross violation of the provisions of the Act, as a result of which the entire acquisition proceedings must fail. 3. Respondent Nos. 1 and 2, in their written statement, have pleaded that there was sufficient compliance of the provisions of Section 4 of the Act as proper publication was done in the official gazette and two daily newspapers, i.e., the Hindustan Times (English) dated 26.6.2003 and The Punjab Kesri (Hindi) dated 27.6.2003. They have further averred that munadi was also got done in the locality by beat of drum as on 26.6.2003 and this fact has not been denied by the petitioners themselves as they have placed on record a copy of munadi report as Annexure P-7. The respondents have pleaded that in view of this, there was sufficient compliance of the provisions of Section 4 of the Act and the petitioners cannot be permitted to challenge the acquisition on this ground. 4. During the course of proceedings, Union of India was also impleaded as party respondent. It has filed a separate written statement and has supported the acquisition by stating that there was sufficient compliance of Section 4 of the Act and the petitioners cannot be permitted to obstruct the acquisition proceedings. 5. We have heard Shri R.K. Jain, learned counsel for the petitioners, Shri S.S. Pattar, Deputy Advocate General, Haryana for respondent Nos. 1 and 2 and Shri M.S. Guglani, counsel for respondent No. 3-Union of India and have carefully perused the record. 6. 5. We have heard Shri R.K. Jain, learned counsel for the petitioners, Shri S.S. Pattar, Deputy Advocate General, Haryana for respondent Nos. 1 and 2 and Shri M.S. Guglani, counsel for respondent No. 3-Union of India and have carefully perused the record. 6. The only contention raised by Shri Jain is that there was non-compliance of Section 4 of the Act and since the provisions of this Section are mandatory, any lapse in observing the same or any violation thereof would render the acquisition proceedings void. It has been contended by him that concededly, no affixation was got done in the locality which is the requirement of the Act. In support of his contention, he relied on the judgment of the Supreme court reported as A.I.R. 1985 S.C. 1622, The Collector (Distt. Magistrate), Allahabad and another v. Raja Ram Jaiswal, and a Division Bench judgment of this Court reported as (1991-1)99 P.L.R. 139, State of Punjab and another v. Desh Raj Mehta and others. In Raja Ram Jaiswals case, their Lordships of the apex Court held as under : "A bare perusal of Section 4(1) clearly shows that in order to comply with the statutory requirements therein set out, a notification stating therein the land which is needed or is likely to be needed for a public purpose has to be published in the official Gazette. The second part of the sub-section provides that the Collector has to cause public notice of the substance of such notification to be given at convenient places in the locality in which the land proposed to be required is situated. Both the conditions are mandatory. As a notification under Section 4(1) initiates the proceedings for acquisition of land and uses the expression shall the mandate of the legislature becomes clear and therefore, the infirmities therein cannot be wholly overlooked on the specious plea that the courts do not interdict at the stage of a mere proposal." In Des Raj Mehtas case (supra), the Division Bench of this Court held as under : "The purpose of the publication of the substance of the notification in the locality is not only that the land owners can file objections, but it is also to enable and permit the State Government to enter upon the land for the purpose of survey and for taking levels or to dig or bore into the sub-soil etc. This is clear from the reading of Section 4(2) of the Act. The provisions of Section 4 of the Act are mandatory and it is now well settled that in case of non-compliance of mandatory provisions, no prejudice need to be shown." 7. Shri S.S. Pattar, learned Deputy Advocate General, Haryana and Shri M.S. Guglani, learned counsel for Union of India controverted the contentions of Shri Jain and argued that there was sufficient compliance of the provisions of the Act and the acquisition proceedings do not suffer from any infirmity or illegality. 8. The point that emerges for determination is as to whether in the facts and circumstances of the case, it can be held that the provisions of Section 4 of the Act had been violated and the acquisition proceedings are liable to be quashed on this score. 9. In the instant case, the notification under Section 4 of the Act was issued on 16.6.2003 and was published in the Haryana Government Gazette dated 1.7.2003. Admittedly, the munadi was done in the locality which fact has not been denied by the petitioners as they themselves have attached the report as Annexure P7 showing that munadi had been done. The grievance made by the petitioners to allege the violation of the provisions of Section 4 of the Act is that there was no affixation at a proper place which has resulted in denial of opportunity to them. 10. When the State issues a notification under Section 4 of the Act it demonstrates its intent to acquire some land. The publication and other modes of publication, such as munadi etc. are the modes to ensure that the intention of the State is amply demonstrated and reaches all concerned. In the present case, the publication of the notification was done in two newspapers and the official gazette and munadi was also done in the concerned locality. The petitioners are agriculturists and the munadi which is done in the villages, is never a fact which is ignored by any villager. In the present case, the publication of the notification was done in two newspapers and the official gazette and munadi was also done in the concerned locality. The petitioners are agriculturists and the munadi which is done in the villages, is never a fact which is ignored by any villager. In the judgment reported as (1995)1 S.C.C. 133, State of Haryana and another v. Raghubir Dayal, their Lordships of the Supreme Court, while dealing with almost identical situation, held as under : "The word shall used in Section 4(1) should be construed to be mandatory because the requirement of Section 4(1) of the publication of the notification in the Gazette followed by their publication in the newspapers perhaps in some cases may not meet the needed purpose of notice to the owner or person claiming interest in the land proposed to be acquired. But it is not the requirement of the law that it be done simultaneously with the publication in the Gazette or newspapers. Though there is a time gap of more than six months between the date of the notification under Section 4(1) in the State Gazette and the date of the publication of the substance of the notification in the locality, the delay by itself does not render the notification under Section 4(1) published in the State Gazette, invalid." 11. We are, therefore, to see whether there was sufficient compliance and whether any prejudice was caused to the petitioners in case the affixation was not done in the locality. The fact of publication of the notification in the newspapers and the fact of munadi having been done in the locality have not been denied by the petitioners. One of the purposes behind the sufficient notice and publication of the notification is to ensure that the affected persons get a right of hearing as is enshrined under Section 5A of the Act. One can understand a person making grouse of not being heard because of faulty publication or having no notice because Section 5-A of the Act is akin to a fundamental right and any violation thereof is a serious violation. 12. The petitioners, in this case, had filed objections under Section 5-A of the Act on 11.7.2003. It is not their case that their objections were not heard properly. 12. The petitioners, in this case, had filed objections under Section 5-A of the Act on 11.7.2003. It is not their case that their objections were not heard properly. Rather, their only grievance is that there was no affixation and that they did not have notice of the acquisition. This contention of the petitioners cannot be accepted because of the reason that they had filed objections and, therefore, they cannot turn around and say that their right to be heard was affected because affixation was not done. 13. In a judgment reported as 2003(10) S.C.C. 626, Pritibha Nima v. State of U.P., the Supreme Court held that when the notification is explicit regarding the purpose of acquisition, which has also been made known in the notice under Section 5-A, then in the absence of any prejudice to the affected persons, the notification cannot be struck down. 14. The crucial aspect, therefore, would be whether any right of the petitioners has been adversely affected by the fact that the notification was not affixed in the locality. The answer would be in the negative as the petitioners had already availed of their right to file objections which have been considered and rejected. 15. Shri M.S. Guglani, learned counsel for the respondent-Union of India relied upon a Division Bench judgment of this Court reported as (2003-2)134 P.L.R. 424, Gagandeep Kang and others v. The Union Territory and another, wherein it was observed as under : "The Collector is the agent of the State Government competent to acquire land for the State Government. One or other official can cause the publication of the substance of the notification in the locality. It is the publication of the substance in the locality which is a material factor so as to invite the attention of the interested person towards the intention of the Government to acquire the land. No rule, provision or instructions were brought to our notice that the procedure of beat of drum has to be carried out only by a public servant. As a matter of fact, such ministerial functions can be performed by any one authorised by the competent authority. The beat of drum is not a process requiring special skill and, thus, the arguments raised by the counsel for the petitioners are misconceived. As a matter of fact, such ministerial functions can be performed by any one authorised by the competent authority. The beat of drum is not a process requiring special skill and, thus, the arguments raised by the counsel for the petitioners are misconceived. In any case, the defects pointed out by the petitioners can at best be called an irregularity which does not vitiate the publication of the notification." 16. As noticed above, the intention of Section 4 of the Act is to give sufficient notice to the persons, who are likely to be affected by the acquisition. The petitioners were conscious of the acquisition proceedings which they demonstrated by filing objections under Section 5-A of the Act. They cannot, therefore, make a grouse that there was no notice to them. We are in agreement with the views express in Gagandeep Kangs case (supra) that it was merely an irregularity which does not vitiate the acquisition proceedings. Apart from that, no prejudice has been shown to have been caused to the petitioners by which it can be said that the acquisition proceedings were bad. 17. We have also noticed that the acquisition is for a public purpose, namely, "for development/beautification on the northeast of "Raja Harsh Ka Tilla", a centrally protected monument at Thanesar by the Government of India, Archaeological Survey of India". Protection of historical monuments is an important aspect which goes to preserve the history and culture of the country. Such projects are of prime importance and the petitioners cannot hold the acquisition proceedings to ransom by resorting to such frivolous pleas, especially when they have not been able to show any prejudice which has been caused to them. 18. For the reasons recorded above, we do not find any merit in the writ petition which is accordingly dismissed. 19. Before parting with the judgment, we deem it proper to comment on the conduct of the Land Acquisition Collector, who was responsible for the publication of notification under Section 4 of the Act. We are amazed that the Land Acquisition Collector did not follow the elementary requirements of publication of notification under Section 4 of the Act. 19. Before parting with the judgment, we deem it proper to comment on the conduct of the Land Acquisition Collector, who was responsible for the publication of notification under Section 4 of the Act. We are amazed that the Land Acquisition Collector did not follow the elementary requirements of publication of notification under Section 4 of the Act. We consider it to be a dereliction of duty on his part and direct the Chief Secretary, Government of Haryana to initiate disciplinary action against the concerned officer, who was responsible for having committed this lapse by not observing the requirement of Section 4 in its totality. It is further directed that the report regarding compliance of the above direction shall be intimated to this Court after the needful has been done. Petition dismissed.