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2013 DIGILAW 1095 (RAJ)

Usman Ali v. State of Rajasthan

2013-05-28

ALOK SHARMA

body2013
JUDGMENT 1. - This writ petition has been filed challenging the land acquisition proceedings in respect of land of the petitioner's wife in respect whereof notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter 'the Act of 1894') was issued on 16.05.2008, followed by a notification under Section 6 of the Act of 1894 on 04.11.2008 and in respect whereof an award has been passed on 06.10.2009 by the Land Acquisition Officer (hereinafter 'LAO'). 2. At the outset, Mr. R.D. Rastogi, appearing for respondent No.5 and Mr. Rajesh Kapoor, appearing for respondent No.4 have pointed out that land in respect of which the present writ petition has been filed and which has been acquired under the award dated 06.10.2009 is not in the khatedari of the petitioner Usman Ali, but one Maksuda Bano albeit the wife of the petitioner. It is submitted that Maksuda Bano in response to the notification under Section 4 of the Act of 1894 issued on 16.05.2008 had filed her objections under Section 5A thereof on 17.06.2008 confined to the measurement of the land in her khatedari which was under section 4 notification was shown as 5 Bigha 1 Biswa when in fact her khatedari was limited to 2 Bigha and 8 Biswani in khasra No.2026. It is submitted that no objection with regard to the public purpose of acquisition was filed by Maksuda Bano. Counsel for the respondents have submitted that the objections under Section 5A of the Act of 1894 purportedly filed by the petitioner allegedly as a person interested only by virtue of being the husband of Maksuda Bano and annexed to the writ petition, were in fact never presented before the Land Acquisition Officer nor receipted and that the petitioner has committed forgery and perjury in relying upon the said objections dated 17.06.2008 under his own hand. It has been submitted that in fact the petitioner only by virtue of being the husband of Maksuda Bano, the recorded khatedar, would have no right to file objections in his own name and it is for this reason that in the list of khatedars / person interested, who had indeed filed objections under Section 5A of the Act of 1894 against the notification under Section 4 on 16.05.2008, name of Maksuda Bano has been shown and that of the petitioner not recorded. Counsel for the respondents further submit that objection to the public purpose of acquisition having been taken by Maksuda Bano in her purported objections of 17.06.2008, it entailed waiver of her right to challenge the public purpose intent under Section 4 of the Act of 1894. The consequential notification / declaration under Section 6 of the Act of 1894 issued on 04.11.2008 thus operates as "conclusive evidence" of the public purpose of acquisition under Section 6(3) of the Act of 1894. The recorded khatedar Maksuda Bano has also filed a reference under Section 18 of the Act of 1894 for enhancement of compensation - which tant amounts to her acquiescence to the acquisition of her land subsequent to which the writ petition should not be entertained. It is submitted on the aforesaid ground, the writ petition ought to be dismissed. 3. Counsel for the petitioner has however submitted that as the husband of the recorded khatedar living with her and thus affected by the land acquisition proceedings, the petitioner is a "person interested" and hence has the locus to file the writ petition as he had the right to file objection under Section 5A of the Act of 1894 the non-consideration whereof vitiates the entire land acquisition proceedings qua the land of his wife. 4. Heard the counsel for the petitioner and the respondents. 5. It is now too well settled that a writ petition under Article 226 of the Constitution of India, if at all otherwise maintainable, has to be filed by an aggrieved person in his own name. A right under Article 226 of the Constitution of India is a personal right and it has been held in catena of cases by this Court as also by the Hon'ble Supreme Court that no person can seek relief on behalf of another before the Court in a petition under Article 226 of the Constitution of India. In S. Palani Velayutham & Ors. v. District Collector, Tirunelvei, Tamil Nadu & Ors., (2009) 10 SCC 664 , the Hon'ble Supreme Court has held that unless the name of a person is recorded in the record of rights, he cannot be treated as a "person interested" in acquisition proceedings. The petitioner is thus also not a "person interested" qua the acquisition proceedings under challenge culminating in the award of 06.10.2009 as the land under acquisition admittedly does not stand in his khatedari. The petitioner is thus also not a "person interested" qua the acquisition proceedings under challenge culminating in the award of 06.10.2009 as the land under acquisition admittedly does not stand in his khatedari. On this ground alone, the writ petition is liable to be dismissed. 6. Aside of the above, the challenge to the acquisition proceedings (now culminating in the award dated 06.10.2009) had to be filed within reasonable time of the notification under Sections 4 and 6 of the Act of 1894 issued on 16.05.2008 and 04.11.2008 respectively. In the instant case, the writ has been filed after 15 months of Section 6 of the Act of 1894 notification. The Hon'ble Supreme Court in the case of Govt. of A.P. & Ors. v. Kollutla OBI Reddy & Ors., (2005) 6 SCC 493 : AIR 2006 SC 642 has in effect held that stale challenges to acquisition proceedings should not be entertained more so after passing of the award. See also Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Ors., (2010) 14 SCC 309 : 2010 AIR SCW 7130 . Also see the judgment of this Court in SBCWP No.2479/10, Devi Singh v. The State of Rajasthan & Ors. , decided today. Further in any event the objections by the recorded khatedar Maksuda Bano were limited to seeking correction in the area of holding indicated in the Section 4 of the Act of 1894 notification and did not seek to challenge public purpose for which the land was sought to be put under acquisition and was finally acquired. This would have constituted waiver even for the recorded khatedar Maksuda Bano to file objections to the Section 4 notification which of necessity have to address the lack of public purpose of the acquisition on whatever grounds may be available or even conceived. Objections under Section 5A of the Act of 1894 have to relate to a challenge / questioning of the public purpose of the notification under Section 4 of the Act of 1894. Where no such objection as to "public purpose" is laid by the recorded khatedar - and a Section 6 of the Act of 1894 declaration followed - in terms of Section 6(3) of the Act of 1894 it would constitute "conclusive evidence" of the public purpose of acquisition. Where no such objection as to "public purpose" is laid by the recorded khatedar - and a Section 6 of the Act of 1894 declaration followed - in terms of Section 6(3) of the Act of 1894 it would constitute "conclusive evidence" of the public purpose of acquisition. A Section 6 of the Act of 1894 notification can be impugned only on the ground of colorable exercise of power. No such ground has been agitated in the writ petition. An award following a Section 6 of the Act of 1894 declaration is only a statutory consequence. Further, a reference for enhancement of compensation has been filed by the recorded khatedar Maksuda Bano and the Hon'ble Supreme Court in the case of Govt. of A.P. (Supra) has held that ordinarily where reference for enhancement has been filed, a challenge the acquisition proceedings should not be entertained by the High Courts. 7. Consequently, I find no force in the writ petition and the same is dismissed.Petition dismissed. *******