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2011 DIGILAW 20 (RAJ)

Kailash v. State of Rajasthan

2011-01-04

GOVIND MATHUR

body2011
JUDGMENT Hon'ble MATHUR, J.—Being the matters inter connected and arising common question for consideration these petitions are considered by the common judgment. 2. Brief facts of the case, as per the petitioners, are hat the land under their tenancy came to be acquired for housing purposes by the Rajasthan Housing Board under the Land Acquisition Act, 1894 (hereinafter referred to as, 'the Act'). The notification under Section 4 of the Act was published on 2.11.2007 and the declaration under Section 6 of the Act was made on 22.1.2009. The acquisition is assailed on two counts and those are : (i) The declaration as per the provisions of Section 6 of the Act was published on 22.1.2009 i.e. after a lapse of one year from the date of publication of notification under Section 4, thus the declaration and further acquisition of land is bad in view of the second clause of the proviso (i) to Section 6 of the Act. (ii) The declaration as per Section 6 of the Act was made without affording hearing as prescribed under Section 5-A of the Act. 3. As per the respondents, the notification under Section 4 was published on 9.1.2008 and the declaration under Section 6 was made on 7.1.2009, thus, the same is valid and not at all hit by the maximum term prescribed for making such declaration. 4. With regard to the second argument advanced on behalf of the petitioners, the stand of the respondents is quoted below : "II. Contents of this paragraph are wholly wrong and are emphatically denied. The objections submitted by the petitioners and other objectors were duly considered by the State Government before issuing declaration u/Sec. 6 of the Act of 1894 and the State Govt. being satisfied that the land is required to be acquired for public purpose has issued declaration under Section 6 of the Act of 1894. III. Contents of this paragraph are wholly wrong and are emphatically denied. It is further submitted that public notice was duly circulated as envisaged u/Sec. 6 of the Act of 1894. The apart, the petitioners being in knowledge of notification Annexure-5, can not be permitted to take such objections. Moreover no prejudice has been caused to the petitioners on this account as the petitioners are in knowledge of notification Annexure-5. It is further submitted that public notice was duly circulated as envisaged u/Sec. 6 of the Act of 1894. The apart, the petitioners being in knowledge of notification Annexure-5, can not be permitted to take such objections. Moreover no prejudice has been caused to the petitioners on this account as the petitioners are in knowledge of notification Annexure-5. It is further submitted that there is a great shortage of houses in fast growing city of Pali. The Rajasthan Housing Board has so far constructed about 2500 houses for various sections of the society. The Rajasthan Housing Board has been constituted under the Rajasthan Housing Board Act, 1970 to provide cheap and affordable houses for various sections of the Society including the economically weaker sections of the society. The Rajasthan Housing Board works on the principles of "no profit no loss" and, therefore, there is a great demand for the houses constructed by the Rajasthan Housing Board. Presently there is no land lying with the Rajasthan Housing Board for constructing houses at Pali, and there are about 400 registered applicants of different categories who are in queue for about 6 years and many more are waiting for registration scheme to be opened by the Rajasthan Housing Board, therefore, proposals were sent to the State Government for acquisition of the present piece of land which is situated adjacent to the existing New Land Scheme, Rajasthan Housing board, Pali. The State Govt. being satisfied about the public purpose has earlier issued notification Annexure-1 and thereafter issued declaration dated 7.1.2009 u/S. 6 of the Act of 1894." 5. In rejoinder the petitioners have mainly reiterated the facts already stated in the petition. 6. Heard learned counsel for the parties. 7. The first submission of the petitioners does not require much consideration as the facts given by the respondents establishes it well that the declaration as per Section 6 of the Act was made within the term prescribed. However, the second contention deserves lucid consideration, and looking to that, this court on 15.11.2010 directed the respondents to make available the original record pertaining to the compliance of the provisions of Section 5-A of the Act. The record called for and provided by learned counsel for the respondents deserves narration in detail. However, the second contention deserves lucid consideration, and looking to that, this court on 15.11.2010 directed the respondents to make available the original record pertaining to the compliance of the provisions of Section 5-A of the Act. The record called for and provided by learned counsel for the respondents deserves narration in detail. It reveals from perusal of it that at the first instance acquisition of the land measuring 120 bighas and 30 biswas was sought as per Section 27 of the Rajasthan Housing Board Act, 1970, for housing purposes. A detailed note was submitted by the petitioners alleging mala fides, non-genuine public purposes, un-feasibility of land for housing purpose etc. After certain deliberations with the State Minister for Urban and Housing Development a request was made by the housing board to the appropriate government to publish a notification as per Section 4 of the Act and the same was accordingly issued on 2.11.2007. A report as per the provisions of Section 5-A of the Act was sent by Special Officer, Urban Development and Housing Department under forwarding letter dated 21.8.2008. The letter aforesaid reads as under: ^^'kklu mi lfpo] uxjh; fodkl ,oa vkoklu foHkkx] jktLFkku] t;iqjA fo"k; % e.My dh voklk/khu Hkwfe xzke ikyh] rglhy ikyh] ftyk ikyh dh jdck 113 ch?kk 10 fcLok dh /kkjk 5, ds vUrxZr ekSdk fjiksVZ fHktokus ckcr~ lUnHkZ % vf/klwpuk Øekad ia-7¼101½ u-fo-fo-@AAA@06 fnukad 02-11-07 egksn;] mi;qZä fo"k;kUrxZr fuosnu gs fd] e.My dh voklk/khu Hkwfe xzke ikyh] rglhy ikyh] ftyk ikyh dh ekSdk fjiksVZ vUrxZr /kkjk 5, dh lwpuk /kkjk 6 lEiw.kZ jdcs dh tkjh djus gsrq i= ds lkFk layXu dj izsf"kr dh tk jgh gSA —i;k dk;Zokgh dj voxr djkosaA layXu % Hkwfe dk fooj.kA ,lMh@& fo'ks"kkf/kdkjh uxjh; fodkl ,oa vkoklu foHkkx jktLFkku] t;iqj** 8. A detailed note on basis of the report submitted by the Special Officer was made by the Legal Remembrance on 6.10.2008 with a recommendation to exclude the chunk of land measuring 3.75 bigha and to consider acquisition only for 109.35 bighas. The recommendation aforesaid was made in conformity to the recommendations made by the Special Officer. The appropriate government accordingly on 6.10.2008 sought revised plan. On 2.1.2009 the Legal Remembrance made a note that the last date for making declaration as per the Section 6 of the ct was 8.1.2009, therefore, an expeditious decision in the matter is required. The recommendation aforesaid was made in conformity to the recommendations made by the Special Officer. The appropriate government accordingly on 6.10.2008 sought revised plan. On 2.1.2009 the Legal Remembrance made a note that the last date for making declaration as per the Section 6 of the ct was 8.1.2009, therefore, an expeditious decision in the matter is required. The matter then was placed before the Secretary-I, Principal Secretary and the Minister, Department of Housing and Urban Development on 7.1.2009. The authorities aforesaid just by putting their signatures approved the land acquisition as recommended by the Special Officer and the Legal Remembrance. The declaration impugned then was made on 9.1.2008. It is pertinent to note that certain documents are submitted by the respondents alongwith their reply as Annexure-R/1/1 and Annexure-R/1/2 but those are not the part of the original record made available to the Court. This may be for the reason that the record produced is of the appropriate government and the documents referred above may be available with the record of the Special Officer being the public notices issued as per the provisions of Section 4(1) of the Act. The notices aforesaid are endorsed to the Divisional Commissioner, Jodhpur; District Collector-Pali, Deputy Housing Commissioner, Rajasthan Housing Board, Jodhpur; Tehsildar Pali, Panchayat Samiti - Pali, Chak No.1; Government School, Pali; Chak No.1, Pali; and Municipal council, Pali. The respondents have also placed on record the forwarding letters as Annexure-R/1/3 under which the notices were sent to the authorities named above. With the factual back-ground narrated above, the second argument of the petitioner deserves consideration. 9. Section 5-A of the Act prescribes that any person interested in any land notified as per Section 4(1) may object the acquisition sought by submitting objections in writing and the following steps then are required to be taken: (i) The Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader. (ii) After making the hearing the further inquiry if necessary the Collector is required to make a report in respect of the land notified. (iii) The report so prepared containing recommendations on the objections along with the record of the land acquisition proceedings is required to be remitted to the government for decision. (iv) The decision of the appropriate government on the objections shall be final. 10. (iii) The report so prepared containing recommendations on the objections along with the record of the land acquisition proceedings is required to be remitted to the government for decision. (iv) The decision of the appropriate government on the objections shall be final. 10. The argument regarding violation of the provisions of Section 5-A is founded with allegation that at the first instance the petitioners objected the acquisition in response to the notification issued as per the provisions of Section 27 of the Rajasthan Housing Board Act, but no opportunity of hearing was accorded. No notice for personal hearing was given even after publication of the notification as per Section 4(1) of the Act. An attempt was made by learned counsel for the respondents to contend that opportunity of hearing was given under the public notices Annexure-R/1/1 and R/1/2. It is asserted that the notices aforesaid were sent by the Collector to he Resident Engineer, Rajasthan Housing Board, Pali for service on various authorities/functionaries and the Resident Engineer in turn sent the same to the Divisional Commissioner, Jodhpur; District Collector, Pali; Deputy Housing Commissioner, Rajasthan Housing Board, Jodhpur; Tehsildar, Pali; Panchayat Samiti - Pali, Chak No.1; Government School, Pali; Chak No.1, Pali; and Municipal Council, Pali on 23.1.2008, along with forwarding letters Annexure-R/1/3 with a request to affix the notices on their notice board. It is also stated that the notices then were published by the respective authorities on their notice boards. 11. The notices as stated by the respondents must have been sent to the officials concerned but nothing is available on record to establish affixing of those notices at public notice board or at some conspicuous place as required under Section 4(1) of the Act. The Resident Engineer, Rajasthan Housing board, Pali Division, may have sent the original notices in the month of January-2008 to the Collector, Pali; Tehsildar-Pali, Panchayat Samiti-Pali, Government School, Pali but nothing is said by the respondents in their reply about proper service by way of affixing those notices at a public place. The forwarding letters under which notices were sent are available on record as Annexure-R/1/3, but those notices are not having designation of the authorities of the Panchayat Samiti and the School concerned to whom the notices were sent. The forwarding letters under which notices were sent are available on record as Annexure-R/1/3, but those notices are not having designation of the authorities of the Panchayat Samiti and the School concerned to whom the notices were sent. A bare perusal of he forwarding letters establishes the casual manner adopted by the Resident Engineer in making efforts to effect service of the public notices. In totality of the facts of the case, in no way the service of the notices, as said to be effected bears confidence, and as such, the same is quite doubtful and that is enough to accept the violation of the valuable right of the petitioners to have an opportunity to object the land acquisition. 12. Apart from the above, the consideration made and decision taken, as per Section 5-A of the Act, is bad for several other reasons. The Collector si required to remit his report prepared after hearing the persons interested and after making necessary inquiry if required, along with entire record of land acquisition proceedings to make the appropriate government enable to reach at an objective decision. In the instant manner, the Special Officer vide the letter dated 21.8.2008 forwarded his report to the Government, but the record of the proceedings was not sent along with that. The forwarding letter refers about remission of inquiry report and description of the land but not of the record pertaining to the land acquisition proceedings. The fact about non-submission of record of the land acquisition proceedings is further substantiated from perusal of the record of the appropriate government made available to this Court. The record is consisting of notings made at the Government level, various notifications issued by the government and the communications received or sent by the government. No record of land acquisition proceedings made by the Collector/Special Officer is part of it. The non-consideration of the record of the land acquisition proceedings is not mere an irregularity but is a serious lapse and illegality that makes the entire process of decision making bad. As per Section 5-A of the Act, the Collector/ Special Officer/Land Acquisition Officer prepares the report after hearing the persons interested and make recommendations to the government and the Government is further required to take a decision which is final. As per Section 5-A of the Act, the Collector/ Special Officer/Land Acquisition Officer prepares the report after hearing the persons interested and make recommendations to the government and the Government is further required to take a decision which is final. This procedure depicts intention of the Legislature to have thorough threshing by the government before arriving at a decision relating to the need of the land acquisition, comparative assessment of such need with the present use of land and also the prejudice that may cause to the persons interested. For this purpose, availability of the record of land acquisition proceedings along with the report of the Collector/Special Officer/Land Acquisition Officer is made mandatory by the Statute. The record containing recommendations of the Collector/Land Acquisition Officer/Special Officer, representations and objections submitted by the persons interested, the foundations and contentions raised by the persons interested during the course of personal hearing are required to be looked into and analyzed for reaching at an objective decision. The non-availability of the record indicates mechanical approach adopted and that renders the entire process of the decision making mere a formality that causes serious injury to the object of the Statute, casualty of which is the valuable right given under Section 5-A of the Act to the persons interested. 13. On examination of the record I also found that a very casual mode was adopted while reaching at decision as desired under provisions of Section 5-A of the Act. As already stated earlier the Legal Remembrance made a note on 6.10.2008 on receipt of the report dated 21.8.2008 and that was placed before the Secretary to the Government, Department of Urban Development. The Secretary desired to have a revised plan but no expeditious action was taken. On 2.1.2009 the Legal Remembrance pointed out that the time was moving fast and the limitation was going to expire on 8.1.2008, therefore, a decision at the earliest was necessary. In such circumstances, the file was placed before the Secretary, Principal secretary and the Miniser to the government of Rajasthan, Department of urban Development, and all these authorities just by putting their signatures approved the recommendations made by the special Officer and the Legal Remembrance. The Government, as per Section 5-A of the Act is required to take a decision and not to just approve the recommendations made to it. The Government, as per Section 5-A of the Act is required to take a decision and not to just approve the recommendations made to it. The decision of the government may be the same as recommended but that should be an outcome of a fair process of decision making. Under Section 50-A of the Act the decision making is a vital component of the land acquisition proceedings, therefore, that should be supported by appropriate application of mind with a foundation of knowledge and sound reasoning. The government while arriving at a decision, as per Section 5 of the Act, is required to analyze the evaluate the need of the acquisition, objections of the persons interested and even the other alternatives if suggested and available. The decision and approval are two different acts. While making decision the competent authority is required to apply its independent mind by taking into consideration every relevant factor relating to the dispute, whereas the approval is an objective permission to act upon the decision taken by some other authority. Under the Act, a final decision is required to be taken by the government and that could not and cannot be treated as just approval to the recommendations made by the Collector or his appointee. The government officials and executives are supposed to act as per the intention of the Legislature and objects of the law, however, in the case in hand the authorities concerned failed to do so. Their approach to reach at a decision is not in consonance to the spirit and thrust of the provisions of section 5-A of the Act, but is quite clerical and mechanical. The authorities competent should have given a decision after adhering entire process of decision making and not a mere approval to the recommendations. The process of decision making is conspicuously absent in the present case. As a matter of fact, in eh instant matter, it is only the approval by the government to the recommendations made by the Special Officer, and the same is considered as a decision of the government. such kind of decision is no decision in the eye of law. 14. Learned counsel for the respondents has placed reliance upon the judgments of Hon'ble Supreme Court in the case of Chameli Singh vs. State of U.P. & Anr. (reported in AIR 1996 SC 1051 ) and State of Gujarat & Anr. such kind of decision is no decision in the eye of law. 14. Learned counsel for the respondents has placed reliance upon the judgments of Hon'ble Supreme Court in the case of Chameli Singh vs. State of U.P. & Anr. (reported in AIR 1996 SC 1051 ) and State of Gujarat & Anr. vs. Musamigan Imam Haidar Bux Razvi (reported in AIR 1977 SC 594 ). 15. In view of the discussion made above, these petitions for writ succeed. Accordingly, the same are allowed. The declaration made by the government under the notification dated 22.1.2009, as per Section 6 of the Land Acquisition Act, 1894 is declared illegal, and therefore, the same is quashed. No order as to costs.