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2011 DIGILAW 1699 (RAJ)

Advani Hotels & Resorts v. State of Rajasthan

2011-08-11

ARUN MISHRA, BELA M.TRIVEDI

body2011
Hon'ble MISHRA, CJ.—Heard. 2. The writ appeal has been preferred as against the order dated 1.4.2009 passed by the Single Bench in CWP No. 5356/2008. 3. The appellant/petitioner has submitted that the petitioner is a registered company and it entered into an agreement to sale on 1.11.1995 in respect of parcel of land which was subject matter of land acquisition notification issued under Section 4 of the Land Acquisition Act, 1894 (for short `the Act') on 29.8.2007. Declaration under Section 6 was issued on 17.12.2007. The writ application was preferred in May, 2008. Award has been passed on 5.12.2008. The notification issued under Section 4 of the Act mentions that there was proposal to acquire the land for the purpose of protecting cenotaph which is of historical importance situated near Amer Mahal and Nahata water reservoir along with Mohan Badi which are protected monuments and thousands of foreign tourists visit these places every day. The cenotaph in question is situated on Jaipur-Delhi road near Amer Fort towards left side near Pariyon Wala Bagh in front of Peer Baba Mazar and there was water reservoir in khasra No. 5580/9104 in Amer, Tehsil Amer, District Jaipur. There was a cenotaph admeasuring 25 feet high on the platform which is of historical importance. There was eminent danger to historical cenotaph and the land around it was likely to be damaged/distorted and lands were likely to be sold by dividing into plots and there was possibility of residential/non-residential structures coming in the area which would cause obstruction in Viewing of Jaigarh and Amer Mahal and construction would caused obstruction in flow water to water reservoir area also. Thus, the State Government has decided to acquire the lands for public purpose under Section 4 of the Act. Consequently, the notification under Section 4 was issued on 29.8.2007, validity of which has been put into question along with declaration made under Section 6 on 17.12.2007. No objection was filed by the petitioner under Section 5A of the Act. The petitioner has questioned the validity of the notification issued under Section 4 of the Act and declaration issued under Section 6 of the Act on various grounds contending that knowledge was gathered by the petitioner of land acquisition in April, 2008. Thus, it was not possible to file objections under Section 5A of the Act. The petitioner entered into agreement to purchase land on 1.11.1995. Thus, it was not possible to file objections under Section 5A of the Act. The petitioner entered into agreement to purchase land on 1.11.1995. The Department of Tourism, Art and Culture had made a recommendation in favour of the petitioner for construction of Five Star hotel in the area in question. Thus, they were bound by the representation which was made way back in the year 1998. At the instance of the same department, it was not appropriate to make acquisition of the land. It is colourable and malafide exercise of power to acquire the land just to defeat the rights of the petitioner accrued under the agreement dated 1.11.1995. 4. The stand of the respondents in the reply is that the award has been passed. Land is not recorded in the name of petitioner. The agreement is on a stamp paper of Rs. 10/- which is unregistered and stamp duty has also not been paid. Agreement is not enforceable in the eye of law. Hence, the petition questioning land acquisition cannot be entertained on the strength of the said agreement. Decision has been taken by the State Government to preserve historical monuments and places in view of Article 49 of the Constitution of India which enjoins a duty upon the State Government to protect every monument or place or object of artistic or historic interest and to prevent them from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be. 5. It is further contended in the reply that there was no legal approval granted by any competent authority for construction of the hotel. The petitioner has only annexed recommendatory letters written by a different department. It is in order to prevent cenotaph and surrounding area, notification under Section 4 of the Act was issued for the public purpose as defined under Section 3 (f) of the Act. 6. The Single Bench has dismissed the writ application holding that objections under Section 5A of the Act were not submitted by the petitioner. Award had also been passed. The acquisition is for protecting the monuments of historical importance under Section 3 (IV-A) of Rajasthan Monuments, Archaeological Sites & Antiquities Act, 1961. The petitioner has not filed any objection under Section 5A(2) of the Act of 1894. It was not necessary to grant personal hearing to the petitioner as he did not prefer any objection. The acquisition is for protecting the monuments of historical importance under Section 3 (IV-A) of Rajasthan Monuments, Archaeological Sites & Antiquities Act, 1961. The petitioner has not filed any objection under Section 5A(2) of the Act of 1894. It was not necessary to grant personal hearing to the petitioner as he did not prefer any objection. Reliance has been placed upon the decision of Hon'ble Apex Court in Talson Real Estate (P) Ltd. vs. State of Maharashtra (2007) 13 SCC 186 ). 7. The writ application has been dismissed by the Single Bench. Aggrieved thereby, the intra court appeal has been preferred. 8. Shri Mahendra Singh, learned counsel appearing on behalf of the appellant/petitioner, has submitted that even if the objections under Section 5A of the Act have not been preferred, the writ application could not have been dismissed in view of the fact that the notification issued under Section 4 of the Act and declaration issued under Section 6 of the Act were quite illegal as earlier the recommendations were made in favour of the petitioner by the same department by writing letter (P/7) on 19.3.1998. The letter was written by the Department of Tourism, Arts and Culture, Jaipur of the State of Rajasthan and it was recommended to the Commissioner, Jaipur Development Authority to grant no objection certificate for construction of Five Star Hotel. Similar communication was written by the Additional Director on 1.4.1998. Thus, the counsel has submitted that once recommendation had been made, it is apparent that the land was in fact not required for the so-called public purpose. It is a colourable and after thought exercise of power. The department is estopped to turn round and to propose acquisition of the very same land of which recommendation has been made in favour of the appellant. Knowledge was gathered by the appellant in April, 2008. As such, it was not possible to file objection under Section 5A of the Act. In order to attribute knowledge it was for the respondents to have established that publicity was given in three modes i.e. by publishing the notification in the gazette, newspaper and local publicity was duly made. The writ petition is maintainable on the strength of the agreement even some of incumbents who have agreed to sale land had accepted the compensation as determined under the award. The writ petition is maintainable on the strength of the agreement even some of incumbents who have agreed to sale land had accepted the compensation as determined under the award. The petitioner cannot be precluded from assailing the legality of the acquisition being interested person within the meaning of Section 5A of the Act. 9. Shri Dinesh Yadav, Additional Advocate General, appearing on behalf of the respondent State has submitted that the land has been acquired for protecting historical monument, cenotaph, reservoir and view of Jaigarh and Amer Mahal is likely to be obstructed in case commercial/residential construction are permitted to be raised in the area. It would also obstruct collection of water in reservoir. Thus, the notification under Section 4 of the Act has been issued followed by declaration under Section 6 of the Act. No objections were preferred under Section 5A of the Act. It is not the question raised in the petition that due publicity in the gazette, newspapers and in local area was not made by the State Government of the notification issued under Section 4 of the Act or that of the declaration issued under Section 6 of the Act. Merely on the strength of the agreement, the writ application cannot be said to be maintainable. It is also submitted that Sukhdev Kaur Sanga w/o Jagdeep Sanga, Arman Sanga s/o Jagdeep Sanga, Surendra Gill s/o Iqbal Singh and Saral Gill s/o Iqbal Singh have received the compensation, receipt of which has been filed. Thus, the appellant is precluded from maintaining writ application, the intra court appeal and to question the legality of the notification. The agreement is on plain Stamp paper of Rs. 10/-. So far, even after expiry of seventeen years, no sale deed has been executed in favour of the appellant. No stamp duty has been paid on the agreement. The appellant was having knowledge of acquisition. The appellant was supposed to act with due diligence. Had the petitioner acted with due diligence, would have come to know about the notification and declaration. Thus knowledge could be attributed to him. The petitioner has to blame itself for not raising objection under Section 5A of the Act. Merely writing letters to grant NOC way back in the year 1998 by the Additional Director, when there was no vision to acquire lands cannot bind the State Government. Thus knowledge could be attributed to him. The petitioner has to blame itself for not raising objection under Section 5A of the Act. Merely writing letters to grant NOC way back in the year 1998 by the Additional Director, when there was no vision to acquire lands cannot bind the State Government. The NOC in fact had not been granted by the competent authority i.e. Jaipur Development Authority. It had been declined on 7.7.2004 by J.D.A., Jaipur vide communication (P/9) as the area in question falls in ecological zone and it was not possible to permit conversion of the use of the land. Thus, the NOC had been declined for construction of the hotel as prayed for by the appellant. Learned counsel for the respondents has relied upon the decision of the Hon'ble Apex Court in Meera Sahni vs. Lieutenant Governor of Delhi and others (2008) 9 SCC 177 ). 10. Learned Additional Advocate general Mr. Dinesh Yadav has submitted that on the strength of the agreement, at the most, the petitioner can approach under Section 30 of the Act for apportionment of compensation in case, the agreement is genuine. 11. After hearing learned counsel for the parties at length, we are of the opinion that no case for interference in the intra-court appeal is made out. The notification issued under Section 4 of the Act and declaration issued under Section 6 of the Act are valid and no dent is caused on their validity by virtue of writing letters by the Additional Director on 19.3.1998 and 1.4.1998. What is of the crus is this that the NOC to construct Hotel had not been granted by the JDA way back in 2004. On the ground that the area falls in ecological zone and it is not possible in view of the order of this Court to change the use of the land. Thus, NOC has not been granted. This communication of J.D.A. was issued on 7.7.2004 much before the decision was taken by the State Government to acquire the land by issuing notification under Section 4 of the Act on 29.8.2007. Thus, NOC has not been granted. This communication of J.D.A. was issued on 7.7.2004 much before the decision was taken by the State Government to acquire the land by issuing notification under Section 4 of the Act on 29.8.2007. The purpose for which notification under Section 4 of the Act has been issued is of protecting the historical monument, cenotaph and water reservoir and with a view to ensure that no commercial or residential construction is raised in the area as that would obstruct the view of Jaigarh and Amer Mahal which are of great tourist attraction in Jaipur bringing thousands of foreign tourists every day and the places have brought Jaipur on international map. Thus, a well considered decision in objective manner has been taken by the State Government for above public purpose which is also constitutionally enshrined under Article 49 of the Constitution of India. Article 49 is quoted below:- "49. Protection of monuments and places and objects of national importance. It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be." 12. In furtherance of the aforesaid duty cast upon the State to protect the historical cenotaph, water catchment area, water reservoir, view of historical palace/fort, decision has been taken to acquire land. We find absolutely no fault in it and letter of any Director or Additional Director is of no avail. No estoppel is created by such letters. In face of such public cause, there cannot be any estopple. Moreover, it is not uncommon to obtain such letters which are issued without due application of mind. Ultimately, NOC has not been granted. Title has not been perfected by getting sale deed executed so far. The agreement is on plain stamp pear of Rs. 10/- and some of recorded owners who had executed agreement to sale in favour of the petitioner have received compensation determined under the award. 13. Even if we do not go into the question what is the effect of petitioner failing to prefer objections under Section 5A of the Act and assuming that without doing that the petitioner could file the writ application. 13. Even if we do not go into the question what is the effect of petitioner failing to prefer objections under Section 5A of the Act and assuming that without doing that the petitioner could file the writ application. However, the fact remains that with due diligence which is expected, the petitioner would have come to know of the notification under Section 4 and declaration under Section 6 of the Act published in the gazette, newspaper and local area. It was for the petitioner to aver in the writ application that due publicity was not made to the notification under Section 4 of the Act and declaration under Section 6 of the Act. In the absence thereof, the respondents were not supposed to make averment with respect to the aforesaid aspects. Submission raised by the counsel is not tenable. It is also pertinent to mention here that the validity of the notification under Section 4 of the Act of 1894 and declaration under Section 6 of the Act of 1894 has not been questioned in the writ application on the ground that due publicity was not given in three modes envisaged under the aforesaid sections. Thus submission raised by learned counsel for the appellant that to attribute knowledge the publicity was made in three modes was to be contended by respondents has no force. The petition was filed belatedly and was liable to be dismissed only on the ground of delay and latches. 14. We have also examined the challenge on merits and we do not find any merits in the submissions raised to the validity of the notifications. 15. In Meera Sahni (supra), the Hon'ble Apex Court has laid down that merely some permissions have been issued is of no consequence until and unless it is shown that the competent authority has granted permission. In the instant case, the competent authority i.e. J.D.A. has declined the NOC to the appellant. The Hon'ble Apex Court has also laid down challenge to the acquisition by subsequent purchaser is impermissible. It has also been held that the transfer of land of which the acquisition has taken place akin is not binding. In the instant case, so far sale deed has not been executed in favour of the petitioner/appellant. The petitioner had claimed to be holder of the agreement. It has also been held that the transfer of land of which the acquisition has taken place akin is not binding. In the instant case, so far sale deed has not been executed in favour of the petitioner/appellant. The petitioner had claimed to be holder of the agreement. At least, some of the recorded owners, who had entered into agreement have accepted the compensation. Thus, we find that there is no merits in the challenge made by the appellant to the notification issued under Section 4 of the Act and declaration issued under Section 6 of the Act. 16. Resultantly, we find the intra court appeal to be meritless as such the same is hereby dismissed. However, we leave the parties to bear the costs. Stay application is also dismissed.