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Rajasthan High Court · body

2011 DIGILAW 1174 (RAJ)

Mahesh Chand v. State

2011-05-30

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—These three writ petitions have been filed by the petitioners assailing the notification issued u/s.4 of the Land Acquisition Act,1984 dated 23.02.2006 issued by the Government for acquisition of their land situated in Village Samleti, Tehsil Mahua, District Dausa for construction of new yard for the Krishi Upaj Mandi Samiti and further notification issued by the Government u/s.6 read with 17(1) of the said Act on 7.9.2006. 2. Shri Anil Khanna, learned counsel for the petitioners has argued that subsequent to issuance of notification u/s.4, petitioners submitted their objections to the Land Acquisition Officer. The Government on 15.10.2006, published a notification u/s.6 read with Section 17A dated 7.9.2006 to the effect that it was satisfied that the land in dispute was needed for public purpose namely for construction of the new yard for Krishi Upaj Mandi, Mahua, Mandawar. It was also stipulated in that notification that the land shall be taken possession of after expiry of 15 days from the date of notice issued u/s.9(1) of the Act. The land acquisition proceedings were being held against the petitioners in absolutely illegal and arbitrary manner. Section 4 notification also does not show that the land was indeed needed for any public purpose. The fact that objections were called u/s.5A of the Act indicates that there was no genuine urgency for the acquisition. Section 17(1) and 17(4) provides for exclusion of the proceedings u/s.5A in case of urgency. The enquiry was held in mechanical manner and the Land Acquisition Officer did not apply its mind to the objections submitted by the petitioners and yet sent his recommendations to the Government for acquisition of land. No intimation was given by Land Acquisition Officer to the petitioners about the sending of the report of recommendation. Petitioners were provided the copy of the report only when notification u/s.6 was issued. Nothing specifically was evident from the report as to formation of report about urgency. There was no material before the Government to invoke the urgency clauses, which even otherwise could not be invoked. The notification u/s.17 also does not disclose any reason why the land was needed urgently. Nothing specifically was evident from the report as to formation of report about urgency. There was no material before the Government to invoke the urgency clauses, which even otherwise could not be invoked. The notification u/s.17 also does not disclose any reason why the land was needed urgently. Learned counsel in support of his arguments relied on the judgment of Delhi High Court in Sudhir Chaudhary vs. Union of India-AIR 1995 Delhi 39 and argued that it was held in that judgment that notification u/s.17(1) should clearly indicate the reasons of urgency for acquisition. Reasons expressed in the file of the department have of no relevance because government orders publically issued, cannot be allowed to be amended, added or clarified subsequently. It was not open to the Government to supply reasons of urgency in an acquisition proceeding before the Court. It is therefore prayed that the writ petition be allowed. 3. Per contra, Shri Inderjeet Singh, learned counsel for the respondents opposed the writ petition and argued that public purpose was very much in existence because existing yard of Krishi Upaj Mandi was rendered insufficient to cater to the needs of the farmers. Land was urgently needed for extension of the existing yard and for establishment of sub-yard. Objections submitted by the petitioners were duly considered by the Land Acquisition Officer and his report was obtained. But then, at that stage, the Government was of a view that the land is needed urgently for construction of sub yard of the mandi. Because of increase in the irrigation facilities, modern techniques, quantum of agriculture produce that were being received in the yard were increasing day by day. Learned counsel in this connection referred to the additional affidavit filed in writ petition no.8558/06, Geela Ram vs. State & Ors. and argued that the quantity of agriculture produce received in the mandi yard has undergone tremendous increase from the year 2001-02 to 2003-04, which is why the present mandi yard was falling short of the requirement and extension was urgently needed. Learned counsel submitted that not only the 80% compensation has been offered to be paid to the petitioners before passing of award but also subsequently award was passed on 21.8.07, copy of which has been placed on recorded as Annexure-R/4/3 in the writ petition of Geela Ram, supra. Learned counsel submitted that not only the 80% compensation has been offered to be paid to the petitioners before passing of award but also subsequently award was passed on 21.8.07, copy of which has been placed on recorded as Annexure-R/4/3 in the writ petition of Geela Ram, supra. With respect to the lands of the petitioners, such award could not be passed because the status quo order is obtaining in this matter. If the petitioners have not received the compensation, they shall be now paid the same. The urgency clause is subjective satisfaction of the Government. Learned counsel for respondents in support of the arguments cited the judgment of Supreme Court in Union of India & Ors. vs. Krishan Lal Arneja & Ors.- (2004) 8 SCC 453 = RLW 2004(3) SC 321, First Land Acquisition Collector & Ors. vs. Nirodhi Prakash Gangoli & Anr.- (2002) 4 SCC 160 and Essco Fabs Pvt. Ltd. & Anr. vs. State of Haryana & Anr.- AIR 2009 SC 1552 . 4. On hearing the learned counsel for the parties and perusing the material on record, I have given my anxious consideration to the rival submissions. 5. Contention that the reasons of urgency must be stated in notification issued u/s.17 and it cannot be said to be supported by the material on record of the Government or otherwise substantiated by production of such material before the Court, cannot be accepted, in view of the law of acquisition that has developed subsequent to the judgement of Delhi High Court in Sudhir Chaudhary, supra. The settled proposition of law is that there should be some material with the Government for its subjective satisfaction as to basis of urgency clause. As held by Supreme Court in Krishan Lal Arneja, supra for invoking of urgency provisions, the State authorities must have subjective satisfaction based on relevant material, that real and genuine urgency existed and that non-invocation of the urgency clause would defeat the very purpose of the acquisition. It was held in that case that mere non-expression of urgency in the notification and absence of reasons therein, cannot be a reason to vitiate the notification. There must be some material facts with the authorities at the relevant time to invoke the urgency clause. 6. It was held in that case that mere non-expression of urgency in the notification and absence of reasons therein, cannot be a reason to vitiate the notification. There must be some material facts with the authorities at the relevant time to invoke the urgency clause. 6. It is trite law that satisfaction in the Government as to urgency can be challenged only on the ground of insufficiency of supportive material or that the Government decision suffer from malice. This argument of the petitioner therefore cannot be accepted. Moreover, in the present case, the award has been passed for the rest of the entire land, except the lands of the petitioners. It is thus evident that substantial part of the land has already been taken possession of and project has already been implemented. In view of the law settled by Supreme Court in Krishan Lal Arneja, supra when the project has been implemented, at this stage, it cannot be held that there was no urgency because actually the substantial part of land was taken possession of and the project was implemented. 7. As per the petitioners' own showing and as is evident from the impugned notification, even the objections raised by the petitioners u/s.5A were also considered by the Land Acquisition Officer and the report was submitted to the appropriate government containing his recommendation. The Government on receipt of that report nevertheless was satisfied for invoking provisions of Section 17(1) only with a view to taking possession of the land at an earlier point of time so as to implement the project of construction of sub-yard of Krishi Upaj Mandi / extension of the existing yard. It therefore directed that on expiry of 15 days period from the publication of notice u/s.9(1), the land shall be acquired for public purpose. No real prejudice can therefore be said to have been caused to the petitioners by mere reason of fact that urgency clause 17(1) was invoked after the report u/s.5A was submitted. However, considering the fact that notification under Section 4 of the Act in this case was issued as far back as on 23.02.2006 and substantial time has gone by since then, petitioners are held entitled to additional amount at the statutory rate prescribed in Section 23(1-A) of the Land Acquistion Act. 8. I therefore do not find any merit in these writ petitions. 9. 8. I therefore do not find any merit in these writ petitions. 9. The writ petitions are therefore dismissed, however with the direction that in case the compensation has not been paid to the petitioners so far, the Land Acquisition Officer shall also while passing the award of acquisition of land of the petitioners, direct for payment of additional compensation at the rate prescribed u/s.23(1-A) of the Land Acquisition Act together with the amount of compensation.