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2017 DIGILAW 1712 (RAJ)

Omprakash v. State of Rajasthan

2017-08-02

M.N.BHANDARI

body2017
ORDER : M.N. Bhandari, J. By this writ petition, a challenge is made to the acquisition proceedings followed by an award dated 1st March, 2017. A prayer is made to declare acquisition proceedings as lapsed in reference to sections 11A of the Land Acquisition Act, 1894 (for short "the Act of 1894") and Section 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "the Act of 2013"). 2. Learned counsel for petitioners submits that a Notification under Section 4 of the Act of 1894 was issued on 12th October, 2011 and published in the Gazette on 14th October, 2011. The declaration under Section 6 of the Act of 1894 was made on 15th April, 2013 with its publication in the Gazette on 13th November, 2014. The award was finally passed on 1st March, 2017. The award was passed after 2-1/2 years from the date of publication of declaration in Gazette, thus acquisition may be declared to have lapsed. 3. It is stated that so far as first publication of declaration under Section 6 of the Act of 1894 is concerned, it was made within time frame given under the Act of 1894, however, delay was then caused in getting it published in the Gazette. It was not within a reasonable period. After first publication of declaration under Section 6 of the Act of 1894, its publication in the Gazette and further publications as per Section 6(2) of the Act of 1894 could not have been with inordinate delay. 4. A reference of the note sheet has been given to show that after first publication of declaration under Section 6 of the Act of 1894 on 15th April, 2013, the further publication in the Gazette and thereupon in the newspaper so as in the locality, was not done promptly, rather, it was with inordinate delay and without any justified reason thus acquisition proceedings may be quashed. 5. It is further stated that paper publication of declaration in the newspaper was not made in the locality in which the land is existing, rather, it was in the newspaper having circulation in Jaipur City, whereas, land is situated in District Tonk. 6. The legislative intent is to take all the steps promptly, however, it is lacking in the present case. The sufferance has been caused in determination of compensation. 6. The legislative intent is to take all the steps promptly, however, it is lacking in the present case. The sufferance has been caused in determination of compensation. The respondents have determined it at the DLC rate, prevalent in the year 2011 when Notification under Section 4 of the Act of 1894 was issued. If the award would have been passed promptly i.e. within a period of three years or so, the petitioners would have received compensation immediately thereupon. It has now been awarded with the delay of few years causing loss to the petitioners. 7. I have considered the submission made by learned counsel for the petitioners and perused the record. 8. It is a case where Notification under Section 4 was published in the Gazette on 14th October, 2011 though Notification is dated 12th October, 2011. As per the dates given in the award at Annexure-5, publication of the Notification under Section 4 was made in two local newspapers of Jaipur Edition on 29th January, 2012. The public notice was issued on 4th May, 2012 and it was published in the locality on 15th May, 2012. It is further a fact that objections under Section 5A of the Act of 1894 were submitted by the petitioners and decided with a report. The declaration under Section 6 of the Act of 1894 was made on 15th April, 2013 with its publication in the Gazette on 13th November, 2014. The delay in publication of Notification in the official Gazette has been challenged as it was almost after one and half year. 9. It has further been alleged that publication in the newspaper was not in the locality where land exists. The publication of declaration under Section 6 of the Act of 1894 in the locality was made on 11th March, 2015. The award was passed on 1st March, 2017 i.e. within two years of last declaration under Section 6 of the Act of 1894. It has not been challenged other than to claim lapse of acquisition. If the dates given above are taken note of then main issue is regarding delay in publication of declaration under Section 6 in the Gazette. The publication of declaration under Section 6 in the newspaper and locality is within reasonable time. 10. It has not been challenged other than to claim lapse of acquisition. If the dates given above are taken note of then main issue is regarding delay in publication of declaration under Section 6 in the Gazette. The publication of declaration under Section 6 in the newspaper and locality is within reasonable time. 10. The question for my consideration is as to whether acquisition proceedings can lapse on account of delay in Gazette Notification of declaration under Section 6 so as in the newspaper and in the locality after its first publication. 11. The other issue is as to whether publication of the declaration in the newspaper was made in the locality where land exists. On the basis of these two issues, lapse of the acquisition has been claimed. The argument or the prayer in reference to Section 25 of the Act of 2013 is not pressed by the counsel for the petitioners. Thus this court is considering only two issues pressed in the present writ petition. 12. The facts of the case have already been narrated thus need not to be reiterated. To appreciate the arguments, Sections 6 and 11A of the Act of 1894 are quoted hereunder for ready reference: "6. Declaration that land is required for a public purpose. Thus this court is considering only two issues pressed in the present writ petition. 12. The facts of the case have already been narrated thus need not to be reiterated. To appreciate the arguments, Sections 6 and 11A of the Act of 1894 are quoted hereunder for ready reference: "6. Declaration that land is required for a public purpose. - (1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5A, subsection (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, subsection (I) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (2); Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1)- (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification: Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation 1. - In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under section 4, sub-section (1), is stayed by an order of a Court shall be excluded. Explanation 2. Explanation 1. - In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under section 4, sub-section (1), is stayed by an order of a Court shall be excluded. Explanation 2. - Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues. (2) Every declaration shall be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing. 11A. Period shall be which an award within made. - The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. Explanation - In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded." 13. Explanation - In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded." 13. Section 6 of the Act of 1894 provides for declaration and the period for it has also been given i.e. between Notification under Section 4 and the declaration under Section 6 of the Act of 1894. 14. Learned counsel for petitioners has not pressed or alleged delay in regard to declaration under Section 6 of the Act of 1894. The issue for consideration is about the delay in publication of declaration in the Gazette. The delay in passing the award has not been raised as it was passed within two years from the date of publication of the declaration in the locality. 15. A reference of the note-sheet of the Land Acquisition Officer has been given. It is relevant from the date of first declaration under Section 6. It was made on 15th April, 2013 with its publication in the Gazette on 13th November, 2014. The perusal of the note-sheet of 24th April, 2013 shows that the Land Acquisition Officer requested for publication of declaration in the Gazette and two local newspapers. A reminder to publish the declaration under Section 6 in the Gazette and newspapers was sent thereupon. Certain corrections in the khasra numbers felt necessary thus an order was passed and, accordingly, it was carried out on 19th December, 2013. The Gazette Notification was ordered to be made thereupon. The respondents again suggested corrections in the khasra numbers and the area involved therein. It was on the second occasion. The Gazette Notification was issued thereupon. It explains the reason for the delay in publication of declaration in the Gazette after first publication of declaration in time. The lapse of the acquisition cannot be on that count of alleged delay in publication of declaration in the Gazette when first publication was made in time and has not been challenged. The period for award is to be reckoned from the last date of publication of declaration in the locality and it is made after Gazette Notification and publication in the newspaper. The period for award is to be reckoned from the last date of publication of declaration in the locality and it is made after Gazette Notification and publication in the newspaper. After Gazette Notification of declaration under Section 6 of the Act of 1894 on 13th November, 2014, the publication in the newspaper was made within few months. It is after completion of the required process followed by its publication of notice in the locality. There is no delay therein or cannot be said to be significant. The provision does exist under the Act of 1894 to lapse of acquisition if the process is delayed in carrying out publication of the declaration in the Gazette and moreso when the initial declaration under Section 6 of the Act of 1894 was made in time and has not been challenged. In view of the above, argument of learned counsel for the petitioners to declare the acquisition as lapsed cannot be accepted. It is not a case where award has been passed after a period of 2 years from the last publication under Section 6 of the Act of 1894. 16. It is urged that on account of the delay, an irreparable loss has been caused to the petitioners. The determination of compensation has been made in reference to the DLC rate prevalent on the date of publication of the Notification under Section 4 of the Act of 1894. If acquisition proceedings would have been completed within a period of three years or quickly then award may have been passed even before 1st January, 2014 i.e. coming into effect the Act of 2013. In that event, compensation would not have been determined as provided under the Act of 2013 but under the Act of 1894. In that case, petitioners would not have received the compensation three times to the DLC rate with 30% solatium and interest, whereas, now the compensation has been determined under the Act of 2013. It cannot be said that delay has caused any loss to the petitioners. The land holders are otherwise protected for the delay as interest is also paid for the delayed period thus the argument raised by learned counsel for petitioners to challenge the acquisition proceedings cannot be accepted. 17. The last argument is regarding publication of declaration under Section 6 in the daily newspaper having circulation in Jaipur Edition instead of District Tonk. The land holders are otherwise protected for the delay as interest is also paid for the delayed period thus the argument raised by learned counsel for petitioners to challenge the acquisition proceedings cannot be accepted. 17. The last argument is regarding publication of declaration under Section 6 in the daily newspaper having circulation in Jaipur Edition instead of District Tonk. The petitioners have not produced copies of the newspapers to find out about its circulation though award makes a reference of Jaipur Edition but it can have circulation even in Tonk District. 18. Learned counsel for petitioners was asked to refer the copies of the newspapers to find out whether Jaipur Edition is having limited circulation in District Jaipur or nearby District as well. The documents have not been submitted to determine the aforesaid issue though crucial and relevant. In absence of material, it cannot be decided in favour of the petitioners. The edition of the newspapers cannot determine its area of circulation, rather, it can be revealed from the newspaper itself or if any other material is produced to show that Jaipur Edition is having limited circulation in Jaipur District or nearby area and not in Tonk District. In view of the above, argument of the learned counsel for petitioners that publication of declaration under Section 6 of the Act of 1894 was not made in the newspaper having circulation in Tonk, cannot be accepted. 19. In view of the above, prayer of the learned counsel for petitioners for declaring the acquisition proceedings as lapsed cannot be accepted. The writ petition is, accordingly, dismissed. 20. At this stage, learned counsel for petitioners prayed that this order should not cause prejudice to seek reference before the Civil Court for determination of compensation. The prayer aforesaid is accepted. This order would not cause prejudice if petitioners seek a reference for determination of compensation by the Civil Court.