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Madhya Pradesh High Court · body

2013 DIGILAW 164 (MP)

Raju Sharma v. State of M. P.

2013-02-07

Sujoy Paul

body2013
ORDER 1. This order will govern final disposal of Writ Petition No.4370/2012 and Writ Petition No.5113/2012. The facts necessary for adjudication of this matter are taken from Writ Petition No.4370/2012. 2. The petitioner is having agricultural land at village Manpura Tahsil and District Gwalior. The petitioner has assailed the notification issued under section 4 of the Land Acquisition Act, 1894 (for short “the Act”) (Annexure P-1). The basic ground for attack is that the notification (Annexure P-1) is not in consonance with the requirement of section 4 of the Act. It does not contain minimum details of the land which is sought to be acquired by the respondents. In absence thereof, the effective and minimum opportunity to file objection, is taken away and respondents have proceeded further and at the stage of proceeding under section 9 of the said Act, the petitioner came to know about it and submitted their detailed objection. 3. Shri V.K. Bharadwaj, learned senior counsel submits that on bare reading of section 4 of the Act as interpreted in various judgments, it is crystal clear that the purpose and intention to issue notification is to make the persons aware that the Government intends to acquire their land. Accordingly, it is the minimum and inevitable requirement to show the description of the land with precision and accuracy in Annexure P-1, so as to enable the effected persons to submit their objection with regard to such acquisition. By drawing the attention of this Court to the notification (Annexure P-1), learned senior counsel submits that it talks about “enclosed list” whereas no list is enclosed with Annexure P-1. In other words, it is submitted that in the notification (Annexure P-1) it is stated that Government intends to acquire certain land as mentioned in the “enclosed list”, however, notification does not contain any such list and, therefore, the description of the land sought to be acquired is totally absent. Only name of the village is mentioned where land is proposed to be acquired and it is mentioned that the plan of the land is available in the office of Land Acquisition Officer, Gwalior, where it can be seen. Criticizing the said notification, it is argued that it does not fulfil the statutory and mandatory requirement of the Land Acquisition Act, 1894 and, therefore, the valuable right of the petitioner is taken away. Criticizing the said notification, it is argued that it does not fulfil the statutory and mandatory requirement of the Land Acquisition Act, 1894 and, therefore, the valuable right of the petitioner is taken away. By taking this Court to various sections after section 4(1) till section 9, it is stated that the respondents have proceeded further without affording reasonable, adequate, effective and sufficient opportunity to the petitioner to put forth objection and at the stage of quantifying the compensation, the petitioner came to know about it and submitted his objection. He submits that impugned proceeding suffers from serious basic infirmity and, therefore, the basic notification under section 4 needs to be set aside. He relied on several judgments of the High Court and the Supreme Court in support of the aforesaid contention. 4. Per contra, Shri Newaskar supported the order Annexure P-1 and submits that indisputably Annexure P-1 is published in two local Hindi newspapers. In the notification which was published in the newspapers aforesaid, it is made clear that the petitioner/affected person can peruse the land map in the office of Land Acquisition Officer. Once name of the village is mentioned in the notification itself, it was open for the petitioner to peruse the map and submit his objection. Accordingly, he supported the notification Annexure P-1 and submits that it is in consonance with the requirement of the section 4 of the Act. In addition, Shri Newaskar submits that the petitioner submitted his objection Annexure P-6 and only prayed for giving adequate compensation as mentioned in the last paragraph of the said objection dated 8.6.2012 (Annexure P-6). He submits that the respondents are ready to decide this objection dated 8.6.2012 from the stage it was submitted before the concerned officer. 5. Shri Bharadwaj, learned senior counsel, in turn, drew the attention of this Court on Annexure P-8, the detailed map which is mentioned in Annexure P-1 and submits that this map also does not indicate about the detail of the canal or the details as to which land is sought to be acquired. He submits that no length of width of the land sought to be required is shown. In absence there of, even if this map is perused, it is difficult to gather whether his land would be effected by the proposed acquisition proceedings. He submits that no length of width of the land sought to be required is shown. In absence there of, even if this map is perused, it is difficult to gather whether his land would be effected by the proposed acquisition proceedings. He emphasized that the description should be there in the notification itself so that the effected person can submit a detailed objection. 6. I have heard the learned counsel for the parties and perused the record. 7. Before proceeding with the argument, it is apt to quote section 4 and section 5A of the said Act which reads as under : “4. Publication of preliminary notification and powers of officers thereupon. -- (1) Whenever it appears to the [appreciate Government] that land in any locality [is needed or] is likely to be needed for any public purpose [or for a company] a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language], and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the lists of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification. (2) Thereupon it shall be lawful for any officer, either, generally or specifically authorised by such Government in this behalf, and for his servants and workmen, -- to enter upon and survey and take levels of any land in such locality; to dig or bore in the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any), proposed to be made thereupon; to make such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle. Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days’ notice in writing of his intention to do so. 5A. Hearing of objections. -- (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, [within thirty days from the date of publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and 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 and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceeding held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final. (3) For the purposes of this section, person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.” The apex Court in 1992 JLJ 331 = (1992)2 SCC 168 (Madhya Pradesh Housing Board v. Mohd. Safi and others) in para 8 held as under : “8. It is settled in law that the process of acquisition has to start with a notification issued under section 4 of the Act, which is mandatory, and even in cases of urgency, the issuance of notification under section 4 is a condition precedent to the exercise of any further powers under the Act. It is settled in law that the process of acquisition has to start with a notification issued under section 4 of the Act, which is mandatory, and even in cases of urgency, the issuance of notification under section 4 is a condition precedent to the exercise of any further powers under the Act. Any notification which is aimed at depriving a man of his property, issued under section 4 of the Land Acquisition Act has to be strictly construed and any serious lapse on the part of the acquiring authority would vitiate the proceedings and cannot be ignored by the Courts. The object of issuing a notification under section 4 of the Act is two fold. First, it is a public announcement by the Government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the Government for the “public purpose” mentioned therein; and secondly, it authorises the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned in section 4(2) of the Act.The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is afoot. The notification is, thus, required to give with sufficient clarity not only the “public purpose” for which the acquisition proceedings are being commenced but also the “locality” where the land is situate with as full a description as possible of the land proposed to be acquired to enable the “interested” persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections etc., since it is open to such persons to canvass the non-suitability of the land for the alleged “public purpose” also. If a notification under section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition, bad.” (Emphasis supplied) 8. If a notification under section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition, bad.” (Emphasis supplied) 8. A bare perusal of the aforesaid paragraph makes it crystal clear that the object of section 4 is to ensure that the notification is published with sufficient accuracy so that the person of the concerned locality comes to know that his land is sought to be acquired. Accordingly, interested persons may submit their objection as per the description mentioned in the notification. Thus, the apex Court has emphasized the need of giving detailed and full description of the land proposed to be acquired to enable the interested persons to know as to which land is being required for the purpose of the Act. In a recent judgment in the case of Radhey Shyam (dead) through LRs and others v. State of Uttar Pradesh and others, reported in (2011)5 SCC 553 , the apex Court held as under : “(i) xxx xxx xxx (ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly. (iii) However, compulsory taking of one’s property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter.” 9. A bare perusal of this judgment makes it crystal clear that the notification under section 4 has a far reaching effect and it may have adverse impact on farmers. The purpose of this section was to ensure that the person whose land and source of livelihood is sought to be taken, gets an effective opportunity. 10. The contention of Shri Newaskar is that the name of village Manpura was given which was sufficient and thereafter it was the duty of the petitioner to approach the office of concerned land acquisition officer and peruse the concerned land map to gather whether his land is acquired. 10. The contention of Shri Newaskar is that the name of village Manpura was given which was sufficient and thereafter it was the duty of the petitioner to approach the office of concerned land acquisition officer and peruse the concerned land map to gather whether his land is acquired. If the petitioner has failed to do so, no fault can be found in the notification (Annexure P-1). 11. In the opinion of this Court the said argument falls short the statutory and mandatory requirement of section 4 of the Act. In the aforesaid judgments of the Supreme Court, it is crystal clear that the description of the land is necessary. The notification (Annexure P-1) for the ready reference is reproduced as under : ^^dk;kZy; dysDVj Xokfy;j ,oa insu milfpo e-iz- ‘kklu jktLo foHkkx ¼e/; izns’k½ @@vf/klwpuk@@ dzekad % 44@v&82@10&11@Hkw&vtZu Xokfy;j] fnukad 29 vDVwcj] 2011A pawfd jkT; ‘kklu dks ;g izrhr gksrk gS fd layXu lwph ds [kkus ¼1½ ls ¼4½ esa of.kZr Hkwfe dh vuqlwph ds [kkus ¼6½ esa mlds lkeus fn, x, lkoZtfud iz;kstu ds fy;s vko’;drk gS vFkok vko’;drk iM+us dh laHkkouk gSA vr% Hkw&vtZu vf/kfu;e] 1894 ¼dzekad ,oa lu~ 1894½ dh /kkjk 4 dh mi/kkjk ¼1½ ds mica/kksa ds vuqlkj blds }kjk lHkh lacaf/kr O;fDr;ksa dks bl vk’k; dh lwpuk nh tkrh gS fd jkT; ‘kklu blds }kjk vuqlwph ds [kkus ¼5½ esa mYysf[kr vf/kdkjh dks mDr Hkwfe ds laca/k esa mDr /kkjk dh mi/kkjk ¼2½ ds }kjk dh xbZ ‘kfDr;ksa dk iz;ksx djus ds fy;s vf/kd`r djrk gSA vuqlwph ftyk rglhy xzke yxHkx /kkjk 4 dh mi/kkjk lkoZtfud iz;kstu {ks=Qy ¼2½ ds vuqlkj dk uke izkf/kd`r vf/kdkjh Xokfy;j Xokfy;j ekuiqjk 2-95 gs- dk;Zikyu ;a=h] fla/k ifj;kstuk gjlh mPpLrjh; ¼f}rh; pj.k½ ds ugj laHkkx dz-2 varxZr gjlh mPp& Xokfy;j Lrjh; ugj dh vjksZyh ‘kk[kk ugj ds fuekZ.k gsrq ekuiqjk dh Hkwfe dk vtZuA 2-95 gs- Hkwfe dk uD’kk ¼Iyku½ U;k;ky; Hkw&vtZu vf/kdkjh Xokfy;j ds dk;kZy; esa ns[kk tk ldrk gSA e-iz- ds jkT;iky ds uke ls rFkk vkns’kkuqlkj ¼vkdk’k f=ikBh½ dyDVj Xokfy;j ,oa insu milfpo e-iz- ‘kklu] jktLo foHkkx** The underlines portion shows that the respondents themselves have treated it necessary to enclosed the list which contains the necessary details of the land and, therefore, they have used the words ^^layXu lwph** (enclosed list) and land described ^^of.kZr Hkwfe** . However, admittedly, neither the said list is enclosed with the notification nor description of the land is mentioned in the notification. On a specific query from the Bench, Shri Newaskar, fairly, submitted that the map of the land mentioned in Annexure P-1 is the document Annexure P-8. A bare perusal of Annexure P-8 shows that there is no mention as to which land is sought to be acquired, what is the size etc. of the said land and who may be the effected person. Accordingly this map is also of no assistance to the respondents. 12. In AIR 1970 Allahabad 414 (Bahori Lal v. Land Acquisition Officer and others), the Full Bench of Allahabad High Court opined as under : “24. The note in a notification under section 4(1) of the Act cannot take the place of a sufficient description of the locality itself. The site-plan or the plan of the land may fix the identity of the land that is, on an examination of the plan it may be possible to find out what is the exact area covered by the proposed acquisition and even which are the plots or parcels of land. That, however, necessarily cannot fix the locality itself. To illustrate, consider a case at a notification under section 4(1) in respect of, say, 5 acres of land in the city of Allahabad. The notification mentions that 5 acres of land situate in the city of Allahabad are proposed to be acquired. If the notification contains a note to the effect that the site-plan may be inspected in the office of the Collector, Allahabad, the plan, unless it mentions the particular locality, i.e., Mohallah of the city, would hardly indicate the mohallah in which the land is actually situate. If it is a scale map, then it may be that an expert Draftsman or an Engineer may ultimately after making calculations and doing various other things, locate the land and find out that it is situate in a particular mohallah. But, it seems to us, common people would not be able to find out on a perusal of the plan the mohallah in which the land proposed to be acquired is situate. They might even after perusing the map be unable to find out whether in respect of the land they are persons interested entitled to file objections under section 5A of the Act or not. They might even after perusing the map be unable to find out whether in respect of the land they are persons interested entitled to file objections under section 5A of the Act or not. Such a notification, therefore, is likely to completely defeat the only right given under section 5A of the Act to raise objections against acquisition of the land or of any land in the locality. Besides, why should it be held in the absence of a clear provision that the persons interested will be bound to take upon themselves an additional onerous duty of inspecting the site-plan in the office of the Collector merely to ascertain as to whether the land notified is one in respect of which they are or are not persons interested? Such an onerous and irksome duty cannot be cast on the citizens under section 4(1) of the Act in the absence of a clear provision in that behalf. A note to the effect that the site-plan of the land can be inspected, in a notification under section 4(1) of the Act, cannot, therefore, be held to be of any consequence and cannot be accepted as valid substitute for sufficient description of the land and the locality, required to be given under section 4(1) of the Act. If, independently of such a note, the description of the locality in which the land is situate can be held to be sufficient in a particular case, the notification will be valid. If, however, independently of such note, the description of the land and the locality is too vague or indefinate the notification cannot be held to be valid. Mention of plot numbers may not be indispensably necessary in a notification under section 4 of the Act. But the notification itself must contain particulars adequately revealing the locality and the land proposed to be acquired therein. Ordinarily this can be done effectively by a proper description of the locality and the mention of the plot numbers or such other material data as may be sufficiently indicative of the land and its location. If this has been done in a given case, the requirements of section 4(1) of the Act have been fulfilled.” This judgment is followed by Punjab and Haryana High Court in Tulsa Singh v. State of Haryana and others [AIR 1973 Punjab and Haryana 263]. If this has been done in a given case, the requirements of section 4(1) of the Act have been fulfilled.” This judgment is followed by Punjab and Haryana High Court in Tulsa Singh v. State of Haryana and others [AIR 1973 Punjab and Haryana 263]. Paras 4 and 6 of this judgment read as under : “4. Another point that arises in the case is whether the purchaser from the original owner has a right to bring the writ petition. This matter is not res integra and has been finally settled by their Lordships of the Supreme Court in Smt. Gunwant Kaur v. Municipal Committee, Bhatinda [ AIR 1970 SC 802 ]. This case also gives support on the first point. A notification was issued in this case in the year 1959 by the State Government of Punjab under section 4 of the Act to the effect that the land specified in the schedule was required for the construction of Mall Road leading from the railway station, Bhatinda, to the main road known as Goniana-Bhatinda road. In the schedule the land was described as Khasra number 2030 and 11 sets of persons were shown as owners of different pieces of land. The aggregate area of the land likely to be needed was shown as 15 Bighas and 5 Biswas. By an amendment of the notification, the holding of Hari Ram was shown in the aggregate as a 8 Bighas and 15 Biaswas. Later on the notification under section 6 of the Act was issued. The matter was challenged by Smt. Gunwant Kaur and others before the High Court by a writ petition which was dismissed in limine. On a certificate issued by the High Court, the petitioners appealed to the Supreme Court. Inter alia it was urged that the notification was vague, that the land was not fully described in the notification, that Khasra No.2030 was a very large plot of land consisting of several building plots which were all part of the main Khasra No.2030 and the original owners of this field number had divided this field into several abadi plots and had sold them to different persons before the notification and that unless the portion sought to be acquired is specified, the owners could not be deemed to have intimation that their plots were to be acquired. In paragraph 7 of the report, their Lordships of the Supreme Court observed as follows : “The notification under section 4 is the foundation of a proceeding for acquisition of land. In the present case the notification under section 4 did not set out with precision the parts of Khasra No.2030 belonging to different owners sought to be acquired. The notification merely set out the areas intended to be acquired out of Khasra No.2030 but the location of the area under Khasra No.2030 could not 6. In view of this clear authority of the Supreme Court, we have no hesitation in holding that the present appellant was fully entitled to challenge the validity of the notification and in view of the fact that the notification issued under section 4 of the Act is hopelessly vague and does not give any description by which the land sought to be acquired could be identified, we accept this appeal, set aside the order of the learned Single Judge and make the rule absolute, quash the notification under section 4 of the Act and all the proceedings taken subsequent thereto. The appellant will have his costs in this appeal as well as in the writ petition thereby be ascertained. No plans demarcating the land to be acquired were published or made available to the owners of the land.” Then in paragraph 9 it was observed as follows : “Section 4 of the Land Acquisition Act does not expressly require the Collector to publish or make available the plans of the lands intended to be notified to the owners of the lands. But the acquiring authority is bound to publish sufficient information giving due notice to the owners of the lands that their properties are intended to be compulsorily acquired......” 6. In view of this clear authority of the Supreme Court, we have no hesitation in holding that the present appellant was fully entitled to challenge the validity of the notification and in view of the fact that the notification issued under section 4 of the Act is hopelessly vague and does not give any description by which the land sought to be acquired could be identified, we accept this appeal, set aside the order of the learned Single Judge and make the rule absolute, quash the notification under section 4 of the Act and all the proceedings taken subsequent thereto. The appellant will have his costs in this appeal as well as in the writ petition.” 13. The same view is again taken in AIR 1975 Punjab and Haryana 125 (Devi Singh and others v. Haryana State and others). Para 6 of this judgment reads as under : “6. The land is of Khasra No.117. In the notification published in the Gazette (Annexure A to the written statement) the land was specified as “a strip of land 475 feet in length of varying widths”. In the column relating to its area, the land has been shown to be of whole area situate within the limits of villages-Chitana and Karawri. Similar specification of the land was given in the public notice referred to in the report of Roznamcha (Annexure B). Khasra Number (117) of the land was not stated in the notification published in the Gazette or in the public notice given in the locality. The specification of the land, as given in the notification (Annexure A), was, in my opinion, insufficient to supply information to the persons interested with regard to its identity. The easiest way to describe it was by giving its Khasra number. But this was not done. Therefore,I feel that the notification as well as public notice lacked information and were too vague to establish the identity of the land. I am supported in this view by Tulse Singh v. The State of Harayana [(1973)75 Punj. LR 227:AIR 1978 Punj. 263]. So, there is force in the contention that the notification as well as public notice were bad on account of having vagueness respecting the identity of the land.” A conjoint reading of these judgments coupled with the view taken by the Supreme Court in Madhya Pradesh Housing Board (supra), makes it clear that the description mentioned in the impugned notification is grossly insufficient and does not fulfil the requirement of section 4 of the notification. 14. The pivotal question is what is the effect of that infirmity in section 4 of the notification. The stand of the Government is that petitioner’s only demand is to pay adequate compensation and, there is no need to set aside the notification impugned herein and Court may issue direction to decide the objection dated 8.6.2012. In the opinion of this Court, this argument has no substance. The stand of the Government is that petitioner’s only demand is to pay adequate compensation and, there is no need to set aside the notification impugned herein and Court may issue direction to decide the objection dated 8.6.2012. In the opinion of this Court, this argument has no substance. If Annexure P-6 is read in its entirety, it shows that the petitioner has raised the serious objection against the acquisition proceedings itself by way of preliminary objection. He made it clear that in the notification and notices etc. it is not clear as to what is the size (length and width) of the land sought to be acquired. He submits that in absence of this minimum and necessary description, he is unable to file appropriate objection. Thus, if objection is read in its entirety it will make it clear that petitioner has raised the objection against the entire acquisition proceeding and it is not confined for the purpose of enhancement of the compensation or payment of adquate compensation. Apart from this, it cannot be forgotton that the petitioner is neither legally equipped person nor a legally trained mind. In such circumstances, the apex Court opined as under in Radhey Shyam (supra) : “It is too much to expect from the rustic villagers, who are not conversant with the intricacies of law and functioning of the judicial system in our country to first obtain relevant information and records from the State authorities concerned and then present skilfully drafted petition for enforcement of their legal and/or constitutional rights.” In the light of aforesaid view taken by the Supreme Court, the stand of the respondents or State is without any substance. 15. In the opinion of this Court, if the objection Annexure P-6 is read in its true perspective, it shows that petitioner has very well raised the objection against the notification by which the respondents have proceeded to acquire the land in question. 16. On the basis of aforesaid analysis, it is crystal clear that it is the minimum requirement while issuing the notification under section 4 to mention the minimum description of the land so as to enable the effected person to raise the objection in adequate manner. In the present case, the impugned notification Annexure P-1 does not contain the said description and, therefore, I am unable to uphold the Annexure P-1. In the present case, the impugned notification Annexure P-1 does not contain the said description and, therefore, I am unable to uphold the Annexure P-1. The apex Court in Madhya Pradesh Housing Board (supra), held that if a notification under section 4(1) of the Act is defective and does not comply with the requirement of the Act, it not only vitiates the notification but also renders all subsequent proceedings connected with the acquisition, bad. Thus, in my opinion, as per the judgment of the Supreme Court aforesaid, once notification under section 4 is found to be bad, all subsequent proceedings based on it has to be declared as bad and illegal in nature. 17. In the light of aforesaid, it is crystal clear that the procedural engrafted safeguards in section 4 and other sections of the Act are to be fulfilled with accuracy and precision. These are not empty formalities, more so when this has an effect of snatching away somebody’s land or source of livelihood. Accordingly, the requirement of the section 4 and section 5A is to be fulfilled strictly. 18. Consequently, the notification Annexure P-1 and subsequent proceedings based thereupon are set aside. Petitions are allowed. However, it is made clear that respondents are at liberty to proceed in these matters in accordance with law.