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2007 DIGILAW 2282 (RAJ)

Naresh Kumar Goyal v. State of Rajasthan

2007-11-30

R.M.LODHA, R.S.CHAUHAN

body2007
JUDGMENT 1. - The appellants are aggrieved by the order of the Single Judge dated 17.08.2007 whereby he allowed the writ petition filed by the present respondents No. 1 and 2 and quashed the order dated 14.06.1991 passed by the Land Acquisition Officer holding that the acquisition of land comprising of Khasra No. 212/285 and 212/266 has lapsed. 2. The brief facts leading to the controversy are thus: (i) That the agricultural land comprising of Khasra No. 212/266 and 212/285 ad-measuring 15 Biswas situate at Nagli Kota, Tehsil and District Alwar belonged to one Bhupendra Kumar Saini. (ii) That the notification under Section 52(2) of the Rajasthan Urban Improvement Act, 1959 (for short, 'the Act of 1959') was issued and published in the Rajasthan Gazette on 01.07.1976 seeking acquisition of the said land by the State Government for the purpose of development of urban area and construction of houses in Northern Eastern Extension Scheme, Alwar city. (iii) That the objections to the proposed acquisition were invited within thirty days from the date of publication of the notification. (iv) That Bhupendra Kumar on 03.07.1976 sought two months time for filing objections and he ultimately on 30.09.1976 submitted his objections. (v) That the competent officer by his report dated 30.04.1977 reported to the State Government that the subject land may be acquired and the compensation may be awarded to the owner. (vi) That after considering the report of the competent officer, the State Government issued a notification under Section 52(1) of the Act of 1959 of acquiring the subject land which was published in the Rajasthan Gazette. (vii) That thereafter notices seem to have been issued under Section 53(3) of the Act of 1959 to Bhupendra Kumar for the purpose of settling the terms of compensation and determination of compensation. Such notices were issued number of times in the year 1977, 1978 and 1979. In the year 1979, to be specific, on 27.07.1979, a notice was issued to Bhupendra Kumar for appearance and handing over possession of the subject land to the competent officer. Yet again on 26.10.1979, the notice was issued to Bhupendra Kumar under Section 52(5) of the Act of 1959 for handing over possession of the subject land. Similar notices were issued to him in the year 1980 on few occasions. Yet again on 26.10.1979, the notice was issued to Bhupendra Kumar under Section 52(5) of the Act of 1959 for handing over possession of the subject land. Similar notices were issued to him in the year 1980 on few occasions. Bhupendra Kumar, though made an application on 26.03.1982 but did not appear before the competent officer for settlement and the compensation or for handing over the possession. The competent officer then took possession of the subject land and handed over the same to the Urban Improvement Trust on 16.07.1982. (viii) That Bhupendra Kumar is said to have expired on 26.09.1990. On 20.04.1991, her wife submitted an application before the Land Acquisition Officer for releasing the subject land from acquisition because the acquisition had lapsed. (ix) That it transpires that without giving any notice of the application dated 20.04.1991 and without affording any opportunity of being heard to the Urban Improvement Trust, Alwar, by the order dated 14.06.1991, the Land Acquisition Officer released the subject land from acquisition by holding that the acquisition proceedings had lapsed by not passing the award within two years of 01.10.1987 when the provisions of the amended Land Acquisition Act, 1984, were made applicable. (x) That the present appellants claim to have purchased the subject land from Smt. Sushila Devi by a registered sale-deed dated o 12.02.1986. 3. The present respondents No. 1 and 2 being aggrieved by the order of the present respondent No. 3 passed on 14.06.1991, preferred the writ petition before the Single Judge. 4. In the writ petition filed by the present respondents No. 1 and 2, the 5 Single Judge by his order dated 17th August, 2007 quashed and set aside the order of the Land Acquisition Officer dated 14.06.1991. It is this order which is impugned in the present appeal. 5. The only question that arises for our consideration in this appeal is whether non-passing of the award under Section 11-A of the Land Acquisition o Act, 1894 which has been extended and the Act of 1959 ceased to have operation w.e.f. 01.08.1987 results in lapsing of the acquisition when the acquired land has already vested in the State. 6. In our considered view, the controversy stands squarely concluded by the judgment of the Supreme Court in the case of Pratap and another v. State of Rajasthan & Others, (1996) 3 SCC 1 . 7. 6. In our considered view, the controversy stands squarely concluded by the judgment of the Supreme Court in the case of Pratap and another v. State of Rajasthan & Others, (1996) 3 SCC 1 . 7. In Pratap's case, the main contention that was urged on behalf of the appellants before the Supreme Court was that no award has been made within two years of the notification issued under Section 52 of the Act of 1959 and the Land Acquisition Act, 1894 having been extended and the Act of o 1959 ceased to have any operation, the acquisition proceedings were required to be taken under the relevant provisions of the Central Act, Section 11A thereof required that the award should be made within two years of publication of Section 6 notification and since in that case the awards were made beyond the said period of two years, the acquisition proceedings had cs lapsed. 8. The Supreme Court noticed the provision contained in Section 52 of the Act of 1959 that provided for compulsory acquisition of land. In paragraph 10 of the report, the Supreme Court compared the provisions of Section 52(2) of the Act of 1959 with Section 4 of the Land Acquisition Act, a 1894 and held that the provisions of Section 52(2) of the Act of 1952 were akin to Section 4 of the Land Acquisition Act. The Supreme Court further held that the inquiry envisaged by sub-section (3) of Section 52 was similar to one under Section 5A of the Land Acquisition Act, 1894. Then the Supreme Court with reference to sub-sections (1) and (4) of Section 52, it was held that on 15 the publication of the notice in the official gazette under Section 52(1), the land gets vested in the State Government free from all encumbrances. 9. Having compared the provisions contained in Section 52(1), (2), (3) and (4) of the Act of 1959 with the provisions of Sections 4, 5A and 6 of the Land Acquisition Act, in paragarh 11 of the report, it has been held that once the vesting of the land with the State Government free from all encumbrances was completed, the subsequent extension of Land Acquisition Act, 1894 to the State of Rajasthan and the amendment made by the amending Act becomes wholly irrelevant and of no consequence. This is what the Supreme Court said in paragraph 11 of the report: "11. From the facts narrated herein above it is clear that the Central Act was extended to the State of Rajasthan only after the land in question had vested in the State Government with the publication of the notification under Section 52(1) on 10.10.1984. Once the vesting of the land in the State Government, free from all encumbrances, was completed the subsequent extension of the Land Acquisition Act, 1894 to the State Government and the amendments made by the Amending Acts to the Rajasthan Urban Improvement Act becomes wholly irrelevant and of no consequence. Neither the amendments nor the extension of the Central Act can have the effect, in law or otherwise, of divesting the State of ownership of the land which had already been vested in it." 10. It is pertinent to notice here that the Supreme Court also held the provision contained in sub-section (4) of Section 52 was quite similar to Section 17 of the Land Acquisition Act, 1894 and after holding so, the Supreme Court applied the ratio of its earlier decision in the case of Satendra Prasad Jain and others v. State of U.P. and others, AIR 1993 SC 2517 . In paragraph 12 of the report thus : "12. Section 17 provides for cases where there is urgency. The relevant provisions for our purposes read thus : 17. Special powers in cases of urgency (1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), take possession of any land needed for public purposes. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. (3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3) (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of Section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (3-B) The amount paid or deposited under sub-section (3-A) shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section 11, the excess may, unless refunded within three months from the date of the Collector's award, be recovered as an arrear of land revenue. (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4, sub-section (1)." 11. Applying the decision of the Supreme Court in the case of Pratap to the facts of the present case, it would be seen that upon publication of the notice in the official gazette under Section 52(1) on 23rd June, 1977, the land vested in the State Government free from all encumbrances. The vesting of the land in the State was, thus, completed on 23rd June, 1977. The subsequent extension of Land Acquisition Act, 1894 w.e.f. 1st August, 1987 and the amendment made by the amendment in the Act of 1959 is of no consequence and does not affect the acquisition of subject land despite non-passing of the award within the time referred to in Section 11A. The subsequent extension of Land Acquisition Act, 1894 w.e.f. 1st August, 1987 and the amendment made by the amendment in the Act of 1959 is of no consequence and does not affect the acquisition of subject land despite non-passing of the award within the time referred to in Section 11A. The vesting having already been completed on 23rd June, 1977, the State could not be divested by the subsequent extension of the Land Acquisition Act, 1894 to the State of Rajasthan and the amendments made in the Act of 1959. 12. Mr. G.K. Garg, the counsel for the appellants, however, submitted that the decision of the Supreme Court in the case of Pratap cannot be applied because in that case the awards were already made whereas in the present case no award has been made. We are afraid, the distinction drawn by Mr. G.K. Garg is superfluous and in fact no distinction at all. The contention before the Supreme Court in the case of Pratap was that the award having not been made within two years of the notification issued under Section 52 of the Act of 1959, the acquisition has lapsed under Section 11A. Exactly the same is the argument of the present appellants in the present case as well. The factum of award having been passed beyond two years of the notification issued under Section 52 of the Act of 1959 or no award having been passed at all, does not alter the legal position expostulated by the Supreme Court in unambiguous words that once the vesting of the land in the State Government free from all encumbrances is completed, the subsequent extension of Land Acquisition Act, 1894 to the State of Rajasthan and the amendment in the Act of 1959 were of no consequence and the State Government cannot be divested of its ownership that has already been vested. 13. We, thus, find that the consideration of the matter by the Single Judge is proper. 14. Before we close, we may deal with the two contentions raised by Mr. G.K. Garg, though half-heartedly. He submitted that the State Government and for that matter Urban Improvement Trust does not need the land for the purpose for which the land has been acquired. 14. Before we close, we may deal with the two contentions raised by Mr. G.K. Garg, though half-heartedly. He submitted that the State Government and for that matter Urban Improvement Trust does not need the land for the purpose for which the land has been acquired. In our view, once the land has been lawfully acquired and has vested in the State Government free from all encumbrances, the expropriated owner is not entitled to restitution of land merely because the purpose for which the land was acquired has ceased to exist. His another argument that the application made by the appellants for regularisation was pending also does not carry the case of the appellants further because once the land was vested in the State Government and the appellants have been divested of the law, there is no question of any regularisation. 15. We, thus, find no merit in this special appeal and it is dismissed in limine.Appeal dismissed. *******