Advani Hotels & Resorts (India) Ltd. v. State of Raj
2009-04-01
AJAY RASTOGI
body2009
DigiLaw.ai
Hon'ble RASTOGI, J.—As alleged in petition, petitioner-Company registered and incorporated under Companies Act, 1956 entered into an agreement to sale (Ann. 4) on 1.11.1995 in respect of a part and parcel of land. It was further alleged that some land was sold to petitioner by Mutual Housing Co-operative Society Ltd., as referred to in para 8 of petition, on the premise where of petitioner Company claims to be person interested and has assailed notification under Section 4 of the Land Acquisition Act, 1894 ("Act") and declaration under Section 6 of the Act (Anns. 11 and 12). 2. Main thrust of arguments made by petitioner's Counsel while assailing notification and declaration impugned is that "public purpose" disclosed in notification under Section 4 is completely vague, which has deprived petitioner-company from submitting written objections and so also of their valuable right provided for participation in inquiry under Section 5A of the Act. In support, Counsel relied upon decision of Apex Court in Munshi Singh vs. Union of India, (1973) 2 SCC 337 . 3. Counsel further submits that after entering into agreement to sale (Ann. 4), petitioner Company approached various authorities for approval of Heritage Hotel/Hospitality Project at Jaipur, which was approved by Tourism Department, Government of India and so also by Director of Tourism, Art and Culture, Rajasthan Jaipur as is evident from correspondence dt. 14.1.1998 (Annxs. 5 and 6); and there being no public purpose involved, respondents initiated process invoked powers for acquisition of land; and "public purpose" as disclosed by respondents in the notification under Section 4 is contrary to what has been envisaged in Section 3(f) of the Act; which vitiates acquisition proceedings initiated by respondents; as such Counsel submits that both the notification under Section 4 and declaration under Section 6 deserves to be quashed and set aside. 4. Respondent-State having entered into caveat filed their reply wherein it has been inter-alia averred that there are "Chhatri" and "Sannikat" of historical importance and keeping in view catchment area of water reservoir and in order to prevent any damage to "Chhatri" of 16th Century and "Sannikat", they were declared to be protected monument under Section 3(IV-A) of Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961 ("Act, 1961") vide notification dt. 29.8.2007 (Ann.
29.8.2007 (Ann. R. 1) and at the same time, in order to prevent damages to historical monuments and so also damage to heritage picturesque to Amer Fort, which being public purpose under Section 3(f)(ii) and for tourism purpose, State Government making plan development from Public funds issued/published notification under Section 4 of the Act (Ann. 11). 5. Government Counsel submits that after notification under Section 4 of the Act (Ann. 11) was published, neither the petitioner submitted written objections nor participated/appeared in the course of inquiry initiated by respondents under Section 5A of the Act for providing opportunity of hearing to objectors to the proposed acquisition; and only after declaration dt. 17.12.2007 (Ann. 12) under Section 6 of the Act being issued, petitioner has straightway approached this Court by assailing aforesaid notification and declaration. 6. Government Counsel further submits that final Award has also been passed on 5.12.2008 and petitioner who never raised any written objection or participated in personal hearing cannot be permitted to question acquisition proceedings initiated by respondents under notification impugned herein and that apart, passing of final Award, the land finally vested with State Government and if at all petitioner feels aggrieved thereby can only claim compensation in accordance with law but has no locus standi to question acquisition which stood final after passing of the Award. 7. I have considered rival contentions of learned Counsel for parties and with their assistance, examined material on record. Both the notifications were issued on 29.8.2007 and published in Official Gazette dt. 31.7.2007 (Ann. R. 10) while declaring monuments "Chhatri" of 16th Century and "Sannikat" of historical importance keeping in view catchment area of water reservoir besides in order to prevent any damages to the protected monuments (supra) under Section 3 (4A) of Act, 1961 and further declaring public purpose under Section 4 of the LA Act, for which the land was intended to be acquired. If petitioner was at all aggrieved of acquisition either with regard to public purpose allegedly being not disclosed or there were reasons to show that the land intended to be acquired was of no use for the Government, remedy was available to the petitioner to have submitted written objection and certainly was entitled for an opportunity of hearing either in person or by any person authorised on his behalf or by pleader to make such objections under Section 5A(2) of the Act. 8.
8. Inquiry provided under Section 5A of the Act of personal hearing to objectors/Khatedars has been held to be mandatory in character by consistent decisions of Apex Court which certainly confers valuable right in favour of land owner to object to proposed acquisition of his property. 9. In instant case, Land Acquisition Officer ("LAO") after taking note of written objections and having afforded opportunity of hearing to objectors and making further inquiry, if any, submitted report to the State Government, who after examining the record which includes written objections and proceedings having taken place in course of personal hearing afforded during inquiry, and so also report of the LAO, on being satisfied, made declaration of intending acquisition under Section 6 of the Act. 10. However, it is true that only in such cases where the land owner has filed objections to proposed acquisition, such objectors are entitled for personal hearing . In cases where objections to proposed acquisition have not been filed, the duty to hear such owners/Khatedars of the land proposed to be acquired does not arise. 11. As regards scope of inquiry under Section 5A of the Act as to who would be competent to object against declaration under Section 6 has been recently considered by Apex Court in Talson Real Estate (P) Ltd. vs. State of Maharashtra, (2007) 13 SCC 186 ad infra: "16. The provisions of Section 5-A of the Act is attracted only when a person interested in any land which has been notified under Section 4(1) makes objection in writing to the Collector within 30 days from the date of the publication of the notification. The period of 30 days will have to be countered from the last day of the publication of the notification under Section 4 of the Act which, in the present case, was admittedly published in Official Gazette on 17.4.1997 and in two daily news papers on the same day. The substance of such notification was notified on the site on 30.4.1997. The appellant company did not choose to file objections under Section 5-A of the Act against the acquisition of its land bearing survey No. 9.23/2/1 ad measuring 1 hectare 82 area. "18.
The substance of such notification was notified on the site on 30.4.1997. The appellant company did not choose to file objections under Section 5-A of the Act against the acquisition of its land bearing survey No. 9.23/2/1 ad measuring 1 hectare 82 area. "18. The appellant Company being the owner of the land, has not filed objection under Section 5-A, in principle, it must be accepted that it had no objection to Section 4 notification operating in respect of its property. Those claimant owners of the lands who have not filed objection under Section 5-A could not be allowed to contend that Section 5A inquiry was bad and that consequently Section 6 declaration must be struck down and that then the Section 4 notification would lapse." 12. In instant case, certainly petitioner Company had an opportunity to file written objections before the LAO or to show that public purpose as disclosed in notification under Section 4 was not public purpose as being covered under Section 3(f) of the Act or to persuade the authority that acquisition of its property should not be made. Curiously enough indisputably, petitioner Company at no point of time after publication of notification under Section 4, submitted any written objections nor has ever participated in inquiry as provided in Section 5A(2) of the Act- in absence whereof, it cannot now be permitted to question preliminary notification under Section 4 or declaration made by State Government under Section 6 of the Act. 13. Judgment relied upon by Counsel for petitioner in Munshi Singh vs. Union of India (supra) has no application in facts of instant case for the reason that it was a case where issue came up for consideration before Apex Court was that if public purpose has not been disclosed in preliminary notification under Section 4, what would be the effect of opportunity provided of submitting written objection or of participation in the inquiry provided under Section 5A of the Act and that can be considered to be denial of affording reasonable opportunity of hearing as provided under Section 5A of the Act.
As noticed (supra), in instant case, once petitioner has failed to submit written objection, question of denial of opportunity of hearing or to examine about public purpose being declared in notification under Section 4 does not arise for consideration and that apart, State Government in its notification under Section 4 has declared public purpose in unequivocal term which cannot be said to be vague or in any manner has caused prejudice to the objector or person interested in submitting written objection as provided under Section 5A of the Act. 14. Moreover, in instant case, after publishing preliminary notification under Section 4 and taking note of written objections, besides opportunity of hearing being afforded to objectors under Section 5A, report was sent by the LAO containing recommendations- taking note whereof appropriate Government took decision to make a declaration under Section 6 obviously after being satisfied and consideration of relevant record, accordingly compliance of provisions of LA Act was made in true spirit, warranting no interference at the instance of petitioner Company. 15. Consequently, writ petition fails and is hereby dismissed. No order as costs.