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Rajasthan High Court · body

2013 DIGILAW 2294 (RAJ)

Amarjeet Kaur v. State of Rajasthan

2013-12-16

MOHAMMAD RAFIQ

body2013
Hon'ble RAFIQ, J.—This writ petition has been filed by Smt. Amarjeet Kaur, widow of late Brigadier Shri Satyawan Singh and her two sons Col. Guru Pratap Singh and Col. Harindera Singh, who are both Colonel in the Indian Army, way back in 1998, challenging the notification dated 11.07.1991 issued under Section 4 of the Land Acquisition Act, 1894 and the award dated 09.01.1995 by which the land was acquired. The aforesaid notification under Section 4 of the Land Acquisition Act, 1894 (for short, the Act') was issued, apart from other land, to acquire the land of Khasra No.371/2 measuring 1 bigha in village Devkheda, Tehsil and District Alwar, which the petitioner no.1 jointly purchased with her husband late Brigadier Satyawan Singh Dhillon by registered sale deed dated 12.06.1978 from Smt. Ram Pyari. The said land was mutated in their favour. According to the petitioners, they constructed a residential house in the said land comprising of six rooms, one kitchen, one toilet, one latrine. They also constructed a staircase, drawing room and two huts along-with two stores, which were also constructed for livestock. The petitioners also planted about 200 permanent trees like Sheesham, Gulmohar, Eucalyptus. They also raised a ‘pucca’ wall on the land in question where electricity motor has been installed. All these constructions were made in the year 1983. Unfortunately late Brigadier Satyawan Singh met with an accident and died on 25.11.1989. Petitioners no.2 and 3 then also became owner of the property and mutation was accordingly corrected. Respondent Urban Improvement Trust, Alwar framed a scheme known as ‘Warehousing & Godown Scheme’ and wrote to the State Government for acquiring the land for that purpose. 2. The State Government issued notice under Section 4 of the Land Acquisition Act, 1894 (for short, 'the Act') on 11.07.1991, which was published in the official gazette on 19.12.1991. The notification was issued in the name of Brigadier Satyawan Singh, although he had already died in the year 1989. Though the petitioner no.1 filed objection under Section 5-A of the Act but the petitioners no.2 and 3 were deprived of their right whereas mutation had already been attested in their favour on 12.12.1989 by the Tehsildar, Alwar. The objection of the petitioner no.1 was that the Warehousing & Godown Scheme was not a proper scheme. Though the petitioner no.1 filed objection under Section 5-A of the Act but the petitioners no.2 and 3 were deprived of their right whereas mutation had already been attested in their favour on 12.12.1989 by the Tehsildar, Alwar. The objection of the petitioner no.1 was that the Warehousing & Godown Scheme was not a proper scheme. It was not notified by the State Government and that there was violation of Sections 29 and 38 of the Urban Improvement Trust Act. Another objection was that the notification has been issued in the name of a dead person, whereas two sons of the petitioner no.1 were recorded khatedars, to whom no notice had been given. Third objection was that a constructed house existed on the land in question since 1983 and entire family is residing there. The Land Acquisition Officer inspected the site and actually found the constructed house, well, huts and shed for poultry farm in the entire land. The planned scheme was also looked into and it was found that the disputed land was outside the boundary of the scheme. The Land Acquisition Officer accepted the objection submitted by the petitioners and proposed to the Government to exclude the land of the petitioners from acquisition and also stated that the representative of the Urban Improvement Trust has informed him that the Urban Improvement Trust would have no objection if the land of the petitioner is excluded from the acquisition. 3. The respondents, however, issued a declaration under Section 6 of the Act on 07.05.1993, which was published in daily local newspaper ‘Vichar Times’ on 18.09.1993 seeking to acquire the aforesaid land. This time again, the notification was issued in the name of late Brigadier Satyawan Singh. The respondent UIT then issued notice under Section 9 of the Act dated 20.11.1993 for determination of compensation. Then the Land Acquisition Officer finally passed the award on 09.01.1995 holding the petitioners entitled to receive a sum of Rs.1,84,680/- as compensation. The petitioners filed a civil suit on the premise that the acquisition proceedings were contrary to the provisions of the Act and the principles of natural justice and, therefore, it should be declared null and void. The suit was accompanied by an application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. The suit was accompanied by an application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. The Civil Court vide order dated 23.12.1993 decided the application of the petitioners and ordered that the Land Acquisition Officer would follow the procedure of law, in particular Section 6 of the Act and petitioners were given liberty to challenge any action taken by him. Petitioners filed an appeal against the said judgment before the Additional District Judge No.1, Alwar, who by his order dated 17.12.1994 directed the parties to maintain status quo. The respondents filed an application under Order 7 Rule 11 of the CPC questioning the maintainability of the suit. The petitioners then filed an application seeking to withdraw the suit with permission to file a fresh. The Land Acquisition Officer made a reference under Section 18 of the Act to the Civil Judge stating therein that he has taken possession of the land on 13.01.1997. 4. Shri Ashok Gaur, learned Senior Counsel appearing for the petitioners, argued that the acquisition proceedings are wholly illegal and incompetent as both the notifications under Sections 4 and 6 of the Act have been issued in the name of a dead person. The notification under section 4 was issued on 11.07.1991 whereas late Brigadier Satyawan Singh died in an accident, which took place on 25.11.1989. Despite objections filed to the first notification by the petitioner no.1, the respondents again issued notification under Section 6 of the Act in the name of a dead person. The proceedings are therefore void ab initio and are liable to be set aside. It was argued that even though the land was mutated in favour of the petitioners no.2 and 3 but they were deprived of filing objection under Section 5-A of the Act. The land acquisition proceedings thus stood vitiated. Learned Senior Counsel, in support of this argument, relied on the judgment of the Supreme Court in I.I.S. Employees' House Building Coop. Society Ltd. vs. State of Karnataka and Others - (2005) 12 SCC 483. Shri Ashok Gaur, learned Senior Counsel argued that the notification under Section 4 of the Act was issued on 11.07.1991 whereas notification under Section 6 of the Act was issued on 07.05.1993. The award was passed on 09.01.1995. Society Ltd. vs. State of Karnataka and Others - (2005) 12 SCC 483. Shri Ashok Gaur, learned Senior Counsel argued that the notification under Section 4 of the Act was issued on 11.07.1991 whereas notification under Section 6 of the Act was issued on 07.05.1993. The award was passed on 09.01.1995. It was further argued that the award has not been passed within two years of the date of notification under Sec. 4 of the Act. The land acquisition proceedings should be declared to have lapsed in view of Section 11-A of the Act. 5. Shri Ashok Gaur, learned Senior Counsel for petitioners, further argued that in the present case declaration under Section 6 of the Act has been issued by the Government without application of mind inasmuch as the Land Acquisition Officer positively recommended for exclusion of the land of the petitioners from the acquisition and therein, he has also mentioned that the Urban Improvement Trust has no objection if the land of the petitioners is not acquired. The Government did not apply its mind as to the said recommendation. The notification has been mechanically issued. 6. Learned Senior Counsel for petitioners, in support of this argument, relied on the judgments of the Supreme Court in Woman’s Education Trust and Another vs. State of Haryana and Others – 2013 AIR SCW 3107 and M/s. Usha Stud and Agricultural Farms Private Ltd. And Others vs. State of Haryana and Others – 2013 AIR SCW 2024. 7. Per contra, Shri R.K. Mathur, learned Senior Counsel appearing for the respondents UIT, argued that for counting the period of two years with reference to notifications under Section 4 of the Act, the last mode of publication would form the basis and the limitation would start to run from that point. As far as Section 4 notification is concerned, though it was issued on 11.01.1991 but it was published in the official gazette of the State of Rajasthan on 19.12.1991. It was affixed at public place in village Mungaska, on 06.08.1991 and village Devkheda on 08.08.1991 and village Udampura on 09.08.1991. Thereafter it was published in the local newspaper ‘Shamak’ on 15.05.1992 and in the Rajasthan Times on 03.05.1992. The notification under Section 6 though was issued on 07.05.1993 but it was published in the official gazette of the State on 13.05.1993. Thereafter it was published in the local newspaper ‘Shamak’ on 15.05.1992 and in the Rajasthan Times on 03.05.1992. The notification under Section 6 though was issued on 07.05.1993 but it was published in the official gazette of the State on 13.05.1993. Learned Senior Counsel submitted that the Government though considered the report of the Land Acquisition Officer, but after considering his report and on due application of mind, came to the conclusion that the land was indeed needed for public purpose, therefore it issued the declaration under Section 6. It cannot therefore be said that the Government has not applied its mind to the report/recommendation of the Land Acquisition Officer. The reference is made to the notification under Sec. 6 (Annexure-5), wherein it is mentioned that the Government has applied its mind to the report under Section 5-A of the Act. It is argued that the land has been acquired by the State Government for the purpose of a scheme of Urban Improvement Trust, Alwar, i.e. Warehousing & Godown Scheme. All the requisite formalities have been completed. The compensation of Rs.1,84,680/- has been deposited with the Civil Court, Alwar, by Cheque dated 13.8.1997. 8. Shri R.K. Mathur, learned Senior Counsel, argued that the construction raised by the petitioner no.1 and her late husband Brigadier Satyawan Singh was unauthorized because it is not specifically pleaded and proved by the petitioners that they have raised the construction after having the plan approved by the competent authority and they are therefore liable to be proceeded under Secs.172 and 173 of the Rajasthan Urban Improvement Trust Act. Possession of the petitioners, if there is any, is unauthorized possession and they are liable to be evicted from the acquired land. As regards the notification issued in the name of dead person, learned Senior Counsel, argued that no prejudice has been caused to the petitioners because the petitioner no.1, the mother of petitioners no.2 and 3, has filed objections and they being her sons would surely be aware of the acquisition proceedings. Since the petitioner no.1 has submitted objection, it cannot be said that the petitioners no.2 and 3 have not submitted the objections. It is argued that the Land Acquisition Officer simply sent the report under Sec.5-A of the Act and thereafter it is for the Government to accept it or not. Since the petitioner no.1 has submitted objection, it cannot be said that the petitioners no.2 and 3 have not submitted the objections. It is argued that the Land Acquisition Officer simply sent the report under Sec.5-A of the Act and thereafter it is for the Government to accept it or not. Once the Government has decided not to drop the acquisition proceedings qua the land of the petitioners and rather continued the same as the land was required for public purpose, no fault can be found therewith. Learned Senior Counsel for the respondent UIT, in support of his arguments, relied on the judgments of the Supreme Court in Sam Hiring Co. vs. A.R. Bhujbal and Others, (1996) 8 SCC 18 and Union of India vs. K. Balaji Jaya Rama Rao and Others, (2007) 15 SCC 791. 9. I have given my anxious consideration to rival submissions and perused the material on record and also respectfully studied the cited case law. 10. In so far as the delay in passing of the award as envisaged under Section 11A of the Act is concerned, suffice it to observe that the respondents have in the additional affidavit filed on 10.01.2011 have clarified this issue that notification under Section 4 of the Act was issued on 11.07.1991, which was published in the official gazette of the State of Rajasthan on 19.12.1991 and in two local newspapers namely ‘Shamak’ and ‘Rajasthan Times’ on 15.05.1992 and 03.05.1992 respectively. Declaration under Section 6 of the Act has thus been issued on 07.05.1993 with respect to which it was clarified by the respondents that it was published in official gazette on 13.05.1993. The award has thus been passed on 09.01.1995 i.e. within two years from the date of notice under Section 4 of the Act, which was published by last mode on 15.05.1992 in daily local newspaper 'Shamak'. In the present case the award has been passed on 09.01.1995, therefore it is within limitation. 11. Adverting now on the argument that both notifications under Section 4 and 6 were issued in the name of dead person, the petitioner cannot be said to have suffered prejudice by this reason because the petitioner no.1, mother of petitioners no.2 and 3, indeed submitted objections. 11. Adverting now on the argument that both notifications under Section 4 and 6 were issued in the name of dead person, the petitioner cannot be said to have suffered prejudice by this reason because the petitioner no.1, mother of petitioners no.2 and 3, indeed submitted objections. In fact, her objections have been favourably upheld by the Land Acquisition Officer, who recommended to the Government for excluding their land from acquisition, which is evident from Annexure-A to the writ petition. It cannot be said that the petitioners or for that matter the petitioners no.2 and 3, were either deprived of filing the objections or that they were taken unawares. They could have very well joined their mother, whose objections were entertained by the Land Acquisition Officer submitting the report in their favour to the Government under Section 5-A of the Act. It is another matter that the Govt. has despite the said report, issued declaration under Section 6 of the Act. 12. Coming now to the argument that the Government has not applied its mind to the report submitted by the Land Acquisition Officer under Section 5-A of the Act and has mechanically issued the declaration under Section 6 of the Act, it would be apposite to refer to decided case law of the Supreme Court on this aspect. 13. The Supreme Court in M/s Usha Stud and Agricultural Farms Private Ltd., supra, held that the satisfaction of the Government to acquire the land must be reached by applying mind to report of the Collector under Section 5A of the Act and the objections of the land owner, 14. In Munshi Singh vs. Union of India (1973) 2 SCC 337 , the Supreme Court emphasized the importance of Section 5-A in the following words:- “ … Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an objector an opportunity of being heard. After hearing all objections and making further inquiry he is to make a report to the appropriate Government containing his recommendation on the objections. The decision of the appropriate Government on the objections is then final. The declaration under Section 6 has to be made after the appropriate Government is satisfied, on a consideration of the report, if any, made by the Collector under Section 5-A(2). The decision of the appropriate Government on the objections is then final. The declaration under Section 6 has to be made after the appropriate Government is satisfied, on a consideration of the report, if any, made by the Collector under Section 5-A(2). The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Sec. 5-A.” 15. In State of Punjab vs. Gurdial Singh – (1980) 2 SCC 471 , the Supreme Court observed as under: “ … it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Arts. 14 (and 19), burke an enquiry under Sec. 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power.” 16. In Shyam Nandan Prasad vs. State of Bihar, (1993) 4 SCC 255 , the Supreme Court reiterated that compliance of Section 5-A is mandatory and observed: “ … The decision of the Collector is supposedly final unless the appropriate Govt. chooses to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive conclusion that the proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument.” 17. The Supreme Court in Raghbir Singh Sehrawat vs. State of Haryana - AIR 2012 SC 468 , observed as under:- “In this context, it is necessary to remember that the rules of natural justice have been ingrained in the scheme of Section 5-A with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. He can also point out that the land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilised for execution of the particular project or scheme. Though it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons.” 18. In Kamal Trading (P) Ltd. vs. State of West Bengal - AIR 2012 SC 823 , the Supreme Court considered the scope of Sec. 5-A and observed as under, “13. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons.” 18. In Kamal Trading (P) Ltd. vs. State of West Bengal - AIR 2012 SC 823 , the Supreme Court considered the scope of Sec. 5-A and observed as under, “13. Section 5-A(1) of the LA Act gives a right to any person interested in any land which has been notified under Section 4(1) as being needed or likely to be needed for a public purpose to raise objections to the acquisition of the said land. Sub-section (2) of Section 5-A requires the Collector to give the objector an opportunity of being heard in person or by any person authorised by him in this behalf. After hearing the objections, the Collector can, if he thinks it necessary, make further inquiry. Thereafter, he has to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final. 14. It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5-A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the authority concerned, inter alia, that the important ingredient, namely, “public purpose” is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an expropriatory legislation, its provisions will have to be strictly construed. 15. Hearing contemplated under Section 5-A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collector’s recommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collector’s recommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5-A(2). As said by this Court in Hindustan Petroleum Corpn. Ltd., the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf. 16. Sub-sec. (3) of Sec. 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Govt. as regards the public purpose must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5-A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the LA Act. The recommendations must indicate objective application of mind.” 19. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the LA Act. The recommendations must indicate objective application of mind.” 19. In M/s Usha Stud and Agricultural Farms Pvt. Ltd., supra, the Supreme Court, on consideration of previous case law on the subject, holding that Section 5-A(2), which represents statutory embodiment of the rule of audi alteram partem, observed as under:- “The ratio of the aforesaid judgments is that Section 5-A(2), which represents statutory embodiment of the rule of audi alteram partem, gives an opportunity to the objector to make an endeavour to convince the Collector that his land is not required for the public purpose specified in the notification issued under Section 4(1) or that there are other valid reasons for not acquiring the same. That section also makes it obligatory for the Collector to submit report(s) to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him so that the Government may take appropriate decision on the objections. Section 6(1) provides that if the appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section 5-A(2) that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take final decision on the objections filed by the landowners and other interested persons. Then and then only, a declaration can be made under Section 6(1).” 20. Similar view was taken by the Supreme Court in recently delivered judgment in Woman’s Education Trust and Another vs. State of Haryana and Others, supra. 21. As per law enunciated by the Supreme Court in aforementioned cases, the report of the Land Acquisition Officer under Section 5-A of the Act has to receive due consideration from the Government. In other words, the Government is not expected to mechanically either adopt the report under Section 5-A of the Act, or reject the same. It has to apply its mind to the recommendations made by the Land Acquisition Officer. In other words, the Government is not expected to mechanically either adopt the report under Section 5-A of the Act, or reject the same. It has to apply its mind to the recommendations made by the Land Acquisition Officer. In the present case, the Land Acquisition Officer in his report under Section 5-A of the Act, recommended that on inspection of the land in dispute, he found that the petitioners have their house and cattle shed constructed on such land and the land is only about a bigha, which has completely been utilized by them by construction. The report also states that this land is not covered by the scheme proposed by the Urban Improvement Trust. The representative of the U.I.T. admitted before the Land Acquisition Officer that this land is outside the boundary of the scheme and the UIT would have no objection if the land in question is excluded from acquisition. All these facts have been averred by the petitioners in Para 13 of the writ petition and especially Ground E states that- “...acquisition of land has been passed by non-application of mind and in mala-fide manner. The Land Acquisition Officer had already recommended after considering objection of the petitioner no.1 under Section 5-A that land is not required because of the fact that there was construction of residential house and the disputed property was not coming within the scheme of UIT. Rejection of recommendation of LAO by the State Government is absolutely arbitrary and unsustainable in eye of law.” 22. But despite assertion by the petitioner as to recommendation by the Land Acquisition Officer that this land of the petitioners was not required owing to aforesaid reasons, no counter affidavit or reply to the writ petition has been filed by the respondent State refuting any of the above assertions, although the matter has remained pending before this court for last 15 years. Though the respondent UIT has produced the record of the Land Acquisition Officer, which contains aforesaid report but the record of the State Govt. has not been produced. It is thus evident that declaration under Section 6 of the Act has indeed been issued mechanically without application of mind. 23. In view of the above, the present writ petition deserves to succeed and is accordingly allowed. has not been produced. It is thus evident that declaration under Section 6 of the Act has indeed been issued mechanically without application of mind. 23. In view of the above, the present writ petition deserves to succeed and is accordingly allowed. The acquisition proceedings initiated vide gazette notification dated 19.12.1991 qua the petitioners for acquisition of land bearing Khasra No.371/2 measuring one bigha, in Village Devkheda, Tehsil and District Alwar, is quashed and set aside.