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2013 DIGILAW 762 (RAJ)

Kishan Lal Saini v. State of Rajasthan

2013-04-16

ALOK SHARMA

body2013
JUDGMENT 1. - This petition has been filed challenging the notification dated 14-11-1996, issued by the Deputy Secretary, Urban Development Department, Government of Rajasthan, withdrawing the earlier notification dated 15-12-1992, whereby the lands under acquisition in terms of the then extant provisions of Urban Improvement Trust Act, 1959 (hereinafter 1959 Act') had earlier been de-acquired. The other prayer of the petitioners in the writ petition is that the peaceful possession of the petitioners in khasra Nos.48, 49/1 and 49/2 village Khohra, Tehsil & District Alwar not be disturbed and be protected by an order of this court. 2. The facts of the case are that resorting to the provisions of the then extant Urban Improvement Trust Act, 1959 (hereinafter 'the 1959 Act') a notification came to be issued on 13-8-1957 under Section 52 (2) thereof inter alia in respect of land falling in khasra Nos.48, 49/1 and 49/2 village Khohra, Tehsil & District Alwar. At the time of initiation of acquisition proceedings the recorded khatedars in respect of khasra Nos.48, 49/1 and 49/2 were Rampyari, Shiv Lal, Sohan Lal and Mohan Lal. The notification under section 52(2) of the 1959 Act was followed by a further notification dated 16-6- 1977 under Section 52(1) of the 1959 Act whereupon statutorily the aforesaid land along with other parcels of land under acquisition vested in the State Government. 3. It appears from the facts on record that the recorded khatedars in the revenue record in respect of khasra Nos.48, 49/1 and 49/2 as detailed herein surrendered the land in their khatedari and under acquisition between 30-11-1978 and 4-12-1978 to the State Government. Consequently panchnamas evidencing the possession of the State Government were drawn. It is relevant to note here that subsequently one Parmanand made a representation to the Special Officer on Duty, (OSD) in the Department of Urban Development and Housing Alwar stating therein that the compensation in respect of acquisition of Khasra No. 48 and 49 ad-measuring 1 bigha 11 biswas in village Khohra, Tehsil & District Alwar not be made to recorded khatedars as he had pending litigation with regard to khatedari of land under acquisition. No objection as to acquisition proceedings and taking of possession by the State Government was raised. No objection as to acquisition proceedings and taking of possession by the State Government was raised. It was prayed that the compensation for the land under acquisition and of which possession had been taken by the State should abide by the decision of his pending suit against the recorded khatedars. The petitioner is none other than the son of said Parmanand. 4. Learned counsel for the petitioner has submitted that the notification dated 14-11-1996 seeking to withdraw the notification dated 15-12-1992 purporting to de-acquire the land under acquisition initiated under the notification under section 52 (2) and followed up with a Section 52(1) Notification under the 1959 Act is arbitrary. He submitted that powers under section 48 of the Land Acquisition Act, 1894 (hereinafter 1894 Act') could not be exercised only in respect of land whereof possession had been taken and in view of the fact that possession of lands khasra Nos.48, 49/1 and 49/2 had not been taken, the de-acquisition notification dated 15-12-1992 was absolutely legal and good in law. He submits that there were no valid and legally sustaining reason for withdrawal of the de-acquisition notification dated 15-12-1992 by the subsequent notification dated 14-11-1996 impugned before this court. 5. Mr. Parag Rastogi, learned counsel for respondent submits that the writ petition is an absolute misuse of the process of this court formed on misstatement of facts, suppression of material facts and without an iota of legal foundation. He submits that the earlier notification dated 15-12-1992 purporting to de-acquire land of khasra Nos.49/1, 49/2 and 48 was misdirected, inasmuch as the State Government had taken possession of the said land in course of acquisition proceedings where upon resort to power under Section 48 of the Land Acquisition Act, 1894if at all applicable, could not have been taken. He submits that in fact the 1959 Act under which the acquisition proceedings had been initiated had no provision for de-acquisition of land. Counsel submits that, aside of above, it is trite that once possession of the land under acquisition is taken, it cannot be de-acquired. Reference in this regard has been made to the judgment of the Hon'ble Supreme Court in case of Rajasthan Housing Board v. Shri Kishan, JT 1993 (1) SC 298 . Counsel submits that, aside of above, it is trite that once possession of the land under acquisition is taken, it cannot be de-acquired. Reference in this regard has been made to the judgment of the Hon'ble Supreme Court in case of Rajasthan Housing Board v. Shri Kishan, JT 1993 (1) SC 298 . He further submits that in case of Pratap v. State of Rajasthan, AIR 1996 SC 1296 the Hon'ble Supreme Court has held that once the notification under Section 52(1) of the 1959 Act is issued, land vests absolutely in the State Government without any escape and only the ministerial act of determination of compensation remains. Counsel for the respondent UIT Alwar then submitted that in any event the petitioner is a successor in interest of Parmanand, who himself had no interest in the land, as he nor the petitioners were at the relevant time recorded khatedars of the land nor in possession. It is submitted that the factum of petitioner or his father not being in possession of land in question is established from Parmanand's representation submitted before the Officer on Special Duty, Urban Development Department, at the time possession of the land was taken by the Government wherein the only aggrievement set out was with regard to the fact of payment of compensation for the land acquired to the recorded khatedars and the only prayer was that disbursement of the compensation for the land acquired abide by the determination of the dispute between Parmanand and the recorded khatedars of khasra Nos.48, 49/1 and 49/2 at the relevant time. 6. Heard learned counsel for the parties and perused the material available on record of writ petition. 7. There are two issues for the determination in this petition. One, as to whether the notification for de-acquisition of land under acquisition can be withdrawn by the State Government after possession has been taken in the course of land acquisition proceedings, and the other, whether the petitioner or his predecessor in interest Parmanand were at any time in the course of land acquisition proceedings in possession of land under acquisition and continued to be so to be entitled for an order of protection of the said purported possession. 8. 8. Section 23 of the Rajasthan General Clauses Act, 1955 provides that where by any Rajasthan law, a power to make or issue orders, rules, regulations, schemes, forms, bye-laws or notifications is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any) to add, to amend, vary or rescind any orders, rules, regulations, schemes, forms, bye-laws or notifications so made or issued. It is thus evident that any notification issued in law by the State of Rajasthan is liable to be modified, varied or rescinded by the exercise of same power under which the earlier notification had come to be issued in the first instance. In my considered opinion the legality of withdrawal of earlier notification dated 15-12-1992 by the subsequent notification dated 14-11-1996 thus cannot be challenged in view of powers of Section 23 of the General Clauses Act. Further, even otherwise the land in issue then under acquisition under the extant provision of Section 52 of the UIT Act, 1959 could not have been de-acquired as possession thereof had been taken by the State on voluntary surrender by the recorded khatedars between 30-11-1978 and 4-12-1978. The father of the petitioner Parmanand in the representation submitted before the Acquisition Officer, Special Officer on Duty, OSD Department of Urban Development and Housing Alwar, at no point of time had objected to the possession being taken from the erstwhile khatedars of the land in question Rampyari, Shiv Lal, Sohan Lal and Mohan Lal, and had only prayed not to disburse the amount of compensation to the erstwhile khatedars of the land in question. It is thus clear that the father of the petitioner Parmanand at no point of time before or after the acquisition proceedings was/ is in possession of the land in question. The prayer for protection of the non-existent possession of the petitioner thus without foundation and substance. 9. Consequently, I find no force in the writ petition and the same is dismissed with a cost of Rs. 10000/-, which be deposited with Rajasthan State Legal Services Authority, Jaipur within a period of one month from today, failing which the Authority shall have a right to recover the same from the petitioner as land revenue.Copy of this order be sent to the Rajasthan State Legal Services Authority, Jaipur.Petition dismissed. *******