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2018 DIGILAW 887 (RAJ)

Tej Singh v. State of Rajasthan

2018-04-03

INDERJEET SINGH

body2018
JUDGMENT : INDERJEET SINGH, J. This writ petition has been filed by the petitioner with the following prayers: “(i) it may kindly be declared that the acquisition proceedings of the land of the petitioner of Khasra No. 342 situated in village Daudpur, District Alwar stand lapsed with effect from 1.8.1989. (ii) the Non-petitioners may kindly be restrained from interfering in the possession and enjoyment of the aforesaid land by the petitioner, in any way. (iii) any other order or direction, which this Hon'ble Court may deem just and proper in the facts and circumstances, stated hereinabove, may also kindly be passed in favour of the humble petitioner. (iv) cost of the writ petition may kindly be awarded in favour of the petitioner.” 2. Brief facts of the case are that the State Government issued a notification under Sec. 52 (2) of The Rajasthan Urban Improvement Trust Act, 1959 (hereinafter referred to as Act of 1959) dated 8.6.1976 for compulsory acquisition of land bring Khasra No. 343 measuring 2 Bibha 11 Biswa situated at Village Daudpur, Alwar for the purpose of housing project of The Urban Improvement Trust, Alwar (hereinafter referred to as ‘UIT’). The said notice was issued in the name of Registered owner/Khatedar of the land in dispute i.e. Moti Lal s/o Budha Ram Jat. Again the State Government issued a notification under Section 52 (1) of the Act of 1959 vide notification dated 18.11.1976. The said notice was also issued in the name of Registered owner/Khatedar i.e. Moti Lal S/o. Budha Ram Jat. In pursuance to the notification issued under Section 52(1) of the Act of 1959 the registered owner/Khatedar of the land was further given notice under Section 53 (3) of the Act of 1959 for appearing on 30.11.1976 for determination of compensation. In compliance of the notice the registered owner appeared in the office of UIT, Alwar and an agreement of compensation for the land acquired by the Government of Rajasthan under Section 52 (1) & (3) of the Act of 1959 was executed between the UIT and the registered owner/Khatedar on 28.3.1977. Thereafter, the possession of the land in dispute was taken by the State Government on 30.3.1977. The compensation for the land in dispute was also paid to the registered owner/Khatedar of the land on the same day i.e. 30.3.1977. Thereafter, the possession of the land in dispute was taken by the State Government on 30.3.1977. The compensation for the land in dispute was also paid to the registered owner/Khatedar of the land on the same day i.e. 30.3.1977. Thus, in pursuance to the provisions of Section 52 (4) of the Act of 1959 the land in dispute vest absolutely in the State Government free from all encumbrances. 3. Prior to filing of the writ petition before this court the petitioner has filed a civil suit with regard to same relief before the Civil Court at Alwar in the matter of Tej Singh v. Urban Improvement Trust, Alwar (Civil Suit No. 219/1987) in the year 1987 and the said suit was dismissed by the Civil Court on the ground that Civil Court has no jurisdiction vide judgment and decree dated 15.3.1999. 4. Counsel for the petitioner submitted that the petitioner had purchased the land in dispute from the original Khatedar of the land Mr. Sadhu Singh through agreement to sell dated 21.5.1969, therefore, he was person interested so far as present land acquisition proceedings are concerned. Counsel further submits that on 5.5.1976 the petitioner submitted a letter to the executive engineer UIT (Alwar) stating therein that with regard to land in dispute the Civil Suit is pending before the Civil Court. Counsel further submits that again vide letter dated 31.12.1976 the petitioner submitted a representation to the OSD Town Planning UIT (Alwar) with regard to pendency of Civil Suit between the parties for the land in dispute and further prayed for awarding of compensation in favour of the petitioner. 5. Counsel further submits that prior to acquiring the land in dispute no notice was ever given to the petitioner as the civil court has passed a decree in his favour with regard to land in dispute vide judgment and decree dated 12.7.1976 and 29.5.1981. Counsel further submits that action of giving the notice to the petitioner is violative of Section 52(2) of the Act of 1959. 6. Counsel further submits that action of giving the notice to the petitioner is violative of Section 52(2) of the Act of 1959. 6. The next argument of the counsel for the petitioner is that Center Land Acquisition Act, 1894 (hereinafter referred to as ‘Act of 1894’ was made applicable in the State of Rajasthan w.e.f. 1.8.1987, there fore, the award was not passed by the State of Government within a period of two years in compliance of Section 11 (A) of the Act of 1894, there fore, the whole acquisition proceedings stands lapsed. 7. In support of his contention, counsel relied upon the judgment passed by the Division Bench of this court at Principal Seat Jodhpur in the matter of Urban Improvement Trust v. Balveer Singh, reported in 1984 RLR 398, wherein it has been held as under:— “34. An argument was raised that in the facts and circumstances of the case, the learned single Judge ought not to have, interfered in the exercise of writ jurisdiction. Mr. H.N. Calla learned Government Advocate submitted that the notice was served on one owner of the land, namely, Balveer Singh and after service of that notice, objections were filed on behalf of all the owners of the land. In this connection, reference was made to lyyappan Mills Ltd. lyyappan Mills Workers Union, ( AIR 1962 Ker. 11 ), wherein it was held that the order directing payment of retrenchment compensation though in excess of jurisdiction of the Tribunal would not be interfered with in the exercise of discretionary powers under Article 226 when it has not resulted in substantial miscarriage of justice inasmuch as what the Tribunal has granted as retrenchment compensation is only the amount offered by the management in its notice at the time of closure. In our opinion, the argument is not tenable, for the compliance of second para of Section 52 (2) of the Act is a pre-requisite condition for the issuance of notice under Sub-section (1) of Section 52 of the Act and non-compliance thereof is an illegality. The provisions contained in second para of Section 52(2) have been completely disregarded and their breach is substantial. The authority under the Act could not proceed to take action under Sub-section (1) without complying with the provisions of Section 52 (2) of the Act. The provisions contained in second para of Section 52(2) have been completely disregarded and their breach is substantial. The authority under the Act could not proceed to take action under Sub-section (1) without complying with the provisions of Section 52 (2) of the Act. We have already held that it would be difficult to say that no substantial injustice has resulted from failure to comply with Sub-section (2) of Section 52 or that mistake or defect or irregularity has not affected the merits of the case. It is a case of illegality. Illegality does not embrace mistake, defect or error in the proceedings. In this case, non-observance of Section 52 (2) has caused substantial failure of justice inasmuch as the petitioners-respondents would be deprived of the property on account of the disregard of the mandatory provisions and without authority or law. We do not mean to say that in all cases, when there is breach of mandatory provision, the Court should invoke its extraordinary jurisdiction. In appropriate cases, the Court may decline to give relief to the parties in exercise of the extra-ordinary jurisdiction. The learned single Judge was right in granting relief to the petitioners-respondents under Article 226 of the Constitution. The aforesaid contention also fails.” 8. Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Laxmi Devi v. State of Bihar reported in 2015 (2) WLC (SC) Civil 464 : 2015 (10) SCC 241 , wherein it has been held as under:— “26. This is also in line with a plaint reading of Section 17 (1), which states that “once possession of the land in taken by the Government Under Section 17, the land vests absolutely in the Government, free from all encumbrances.” In Section 48 (1) the taking over of the possession of the land is of seminal significance in that the provision succinctly states that ‘‘the Government shall be at liberty to withdraw from the acquisition of any land the possession of which has not been taken.” The next Sub-section covers calculation of compensation for the aborted occupation. 26.1. The same position came to be reiterated in Satendra Prasad Jain by a Three Judge Bench of this Court. The acquisition proceedings including the exclusion of Section 5A had obtained the imprimatur of the Allahabad High Court; the urgency and public purpose had received curial concurrence. 26.1. The same position came to be reiterated in Satendra Prasad Jain by a Three Judge Bench of this Court. The acquisition proceedings including the exclusion of Section 5A had obtained the imprimatur of the Allahabad High Court; the urgency and public purpose had received curial concurrence. Possession of the land was taken by the State from the landowners. Previously, the Special Leave Petition filed by the landowners had been dismissed by this Court. Ironically, the subsequent stance of the State was that the acquisition of land under the urgency provisions was required to be set aside for the reason that the State had failed to pass an Award Under Section 11 within two years and had also failed to pay eighty per cent of the estimated compensation required under Section 17 (3A). Whilst the State endeavoured to withdraw from the acquisition, the erstwhile landowners opposed it. This Court directed the State “to make and publish an award in respect of the said land within twelve weeks from today”. The abovementioned discussion bears out that this Court was concerned only with the issue of the land being returned by the State to the erstwhile owner. It does not go so far as to limit or restrict the rights of landowners to fair compensation for their expropriated property, as that is a Constitutional right which cannot be nullified, neutralised or diluted. 28. We do, however, recognize that Satendra Prasad Jain has been interpreted more broadly in the past. In Allahabad Development Authority v. Naziruzzaman, Deptt, of Telecommunication v. Madan Mohan Pradhan and Banda Development Authority v. Moti Lal Agarwal, this Court has dismissed the landowners’ challenges to the respective acquisitions on the basis of Avinash Sharma and Satendra Prasad Jain. It is pertinent to note that all three of these cases were brief in their explanations of Avinash Sharma and Satendra Prasad Jain, and did not examine their rationes decidendi, their innate contradictions, their intentions or their consequences at any length. We thus feel it appropriate to rely on our own detailed exploration of these cases, as opposed to simply placing reliance on the largely contradictory case law that has developed over the years. It was for this reason that we had revisited the curial concept of ratio decidendi. 30. We thus feel it appropriate to rely on our own detailed exploration of these cases, as opposed to simply placing reliance on the largely contradictory case law that has developed over the years. It was for this reason that we had revisited the curial concept of ratio decidendi. 30. We feel it imperative to distinguish between the setting aside of an acquisition and the reversion of possession to the erstwhile landowners. While the L.A. Act and the judgments discussed above do not allow for the latter, we are of the considered opinion that this does not necessarily imply that the former is also not an option. Both the abovementioned cases dealt with a factual situation in which the Government was attempting to set the acquisition of the land at naught so that they would not have to pay compensation to acquire it. Setting aside of the acquisition in those cases was tantamount to reversting the possession to the original owners. In this scenario, however, the two do not have to go hand in hand. In allowing the acquisition of land that the Government finds necessary to be set aside, we would not necessarily be holding that the land revert to the Appellants, as the alternative of permitting the Government to keep possession provided it re-acquires the land with a new Section 4 notification exists. This option, particularly in the present factual matrix, does the least violence to the intent and content of the L.A. Act, in that it upholds Section 11A even in cases of acquisition Under Section 17 while preserving the requirement of Section 17 that the unencumbered possession of the land remain vested in the Government it also protects the rights of the landowners, thus fulfilling the intent of Section 11 A, while allowing the Government to acquire land in cases of emergencies without its title being challenged, which is the avowed intention of Section 17. Any other interpretation of the law would serve to protect only those landowners who had approached the Court to stop the Government from undoing an emergency acquisition, while leaving in the cold equally aggrieved landowners seeking to enforce their right to fair compensation for their land. Even equity demands that the party bearing the consequence of the delay in the Award ought not to be the innocent landowner, but the errant State.” 9. Even equity demands that the party bearing the consequence of the delay in the Award ought not to be the innocent landowner, but the errant State.” 9. Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Competent Authority v. Barangore Jute Factory, reported in 2005 (13) SCC 477 ; wherein it has been held as under:— “11. About the argument based on vesting of the land in the Central Government, it is to be seen that if the initial Notification is bad, all steps taken in pursuance thereof will fall with it. Vesting under Section 3D (2) arises on a declaration by the Central Government under Section 3D (1). The declaration is the result of disposal of objections under Section 3C. Each step is a consequence of earlier step and in that sense all the steps are linked to initial Notification for acquisition under Section 3A (1) and (2) This initial Notification has been held to be not in accordance with law. When the foundation goes rest of the edifice falls. The invalid Notification under Section 3A renders all subsequent steps invalid. Therefore, vesting of land in the Central Government in the present case cannot be said to be lawful and it does not advance the case of the Competent Authority or the NHA1. Taking possession of the land is yet another step in the same sequence and is again subject to the initial Notification being hold valid. The initial Notification having been invalidated, there can be legal or valid vesting of land in the favour of the Central Government.” 10. Counsel for the respondents submitted that the original Khatedar of land in dispute was one Sh. Sadhu Singh who sold the land in dispute to one Mr. Moti Lal through registered sale deed dated 26.6.1971. The name of Moti Lal was also entered in the Revenue records on 27.8.1971. Counsel further submits that State Government has rightly started the acquisition proceedings by issuing the notices to the Registered owner/Khatedar of the land on the basis of Revenue record and therefore, rightly issued the notice under Section 52 (2) of the Act on 8.6.1976 in the name of Sh. Moti Lal. Counsel further submits that State Government has rightly started the acquisition proceedings by issuing the notices to the Registered owner/Khatedar of the land on the basis of Revenue record and therefore, rightly issued the notice under Section 52 (2) of the Act on 8.6.1976 in the name of Sh. Moti Lal. Counsel further submits that in compliance of the provisions of Act notice under Section 52 (1) was again issued in the name of Registered owner/Khatedar of the land i.e. Moti Lal on 18.11.1976 and published in the Official Gazette on 25.11.1976. Counsel further submits that an agreement for compensation of the land in dispute acquired by the Government of Rajasthan under Section 52 (1), (3) and (4) of the Act of 1959 was executed between the Khatedar and the State Government and by the said agreement the Khatedar i.e. Moti Lal has agreed to take the amount of compensation determined and settled between himself and the State Government. Counsel further submits that the petitioner has no locus standi to challenge the acquisition proceedings as land in dispute was duly acquired by the State Government after following the due procedure of law as provided under the Act of 1959 by issuing the necessary notices to the Registered owner/Khatedar of the land based on the Revenue record and after paying him compensation possession of the land in dispute had also been taken by the State Government. Counsel further submits that in view of the provisions of Section 52 (4) once the notice under Section 52 (1) is published in the Official Gazette, the land shall vest absolutely in the State Government free from all encumbrances. Counsel further subits that the provisions of Section 11 (A) of the Act of 1894 are not applicable so far as the present land acquisition proceedings are concerned because the land acquisition proceedings were completed under the Act of 1959 after taking the possession of the land indispute and making payment to the Khatedar based on the Revenue record. In support of his contention counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Pratap v. State of Rajasthan, reported in AIR 1996 SC 1296 wherein it has been held as under:— “11. In support of his contention counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Pratap v. State of Rajasthan, reported in AIR 1996 SC 1296 wherein it has been held as under:— “11. From the facts narrated hereinabove it is clear that the Central Act was extended to the State of Rajasthan only after the land in question had vested in the State Government with the publication of the notification under Section 52 (1) on 10th October, 1984. Once the vesting of the land in the State Government, free from all encumbrances, was completed, the subsequent extention of the Land Acquisition Act, 1894 to the State of Rajasthan and the amendments made by the Amending Acts to the Rajasthan Urban Improvement Trust Act becomes wholly irrelevant and of no consequence. Neither the amendments nor the extension of the Central Act can have the effect, in law or otherwise, of divesting the State of ownership of the land which had already been vested in it. 12. The provisions of Sub-section (4) of Section 52 are somewhat similar to Section 17 of the Land Acquisition Act, 1894. Just as publication of a notification under Section 52 (1) vests the land in the State, free from all encumbrances, as provided by Section 52 (4), similarly when possession of land is taken under Section 17 (1) the land vests absolutely in the Government free from all encumbrances. A question arose before this Court that if there is a non-compliance with the provisions of Section 5-A and an award is not made in respect of to the land so acquired, would the acquisition proceedings lapse. In Satendra Prasad Jain v. State of U.P. (1993) 4 SCC 369 : (1993 AIR SCW 3184), this Court held that once possession had been taken under Section 17 (1) and the land vested in the Government then the Government could not withdraw from acquisition under Section 48 and the provisions of Section 11-A were not attracted and, there fore, the acquisition proceedings would not lapse on failure to make an award within the period prescribed therein. It was further held that non-compliance of Section 17(3-A), regarding part payment of compensation before taking possession, would also not render the possession illegal and entitle the Government to withdraw from acquisition. It was further held that non-compliance of Section 17(3-A), regarding part payment of compensation before taking possession, would also not render the possession illegal and entitle the Government to withdraw from acquisition. The aforesaid principle has been reiterated by this Court in P. Chinnanna v. State of A.P. (1994) 5 SCC 486 , and Awadh Bihari Yadav v. State of Bihar, (1995) 6 SCC 31 : (1995 AIR SCW 3810). In view attracted in the present case and even if it be assumed that the award has not been passed within the stipulated period, the acquisition of land does not come to an end.” 11. Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter or M. Nagabhushana v. State of Karnataka, reported in 2011 (3) SCC 408 , wherein it has been held as under:— “31. A somewhat similar question came up for consideration before a three-judge Bench of this Court in Pratap v. State of Rajasthan. In that case the acquisition proceedings commenced under Section 52 (2) of Rajasthan Urban Improvement Act, 1959 and the same contentions were raised, namely, that the acquisition notification gets invalidated for not making an award within a period of two years from the date of notification. Repelling the said contention, the learned Judges held that once the land is vested in the Government, the provisions of Section 11-A are not attracted and the acquisition proceedings will not lapse. (Pratap case, 10 SCC para 12 at p. 8 of the Report).” 12. Counsel for the private respondent also submits that after acquiring the land in dispute UIT has further developed it for housing colony namely NEB, Subhash Nagar and plots have been also allotted in favour of the private respondent. The private respondent have also placed on record the allotment letters issued by the UIT (Alwar) in their favour and also produced the documents regarding payment of lease money Counsel further submits that private respondent are having the peaceful possession of the property in dispute and prayed for dismissal of the writ petition. 13. Heard counsel for the parties and perused the record. 14. 13. Heard counsel for the parties and perused the record. 14. The first argument raised by the counsel for the petitioner that acquisition proceedings stand lapsed as no notice for acquisition of land was given to the petitioner as per provisions of Section 52 Act of 1959 is not acceptable because the respondents have started the acquisition proceedings under the Act of 1959 and the notice of acquisition proceedings were duly served upon the Khatedar/registered owner of the land i.e. Sh. Moti Lal as per Revenue record and the possession of the land was also taken by the State Government and due compensation was also paid to the Khatedar by the State Govt. Thus, in my considered view, once the possession of the land in dispute was taken over by the State Government and the compensation was also paid to the Khatedar based on Revenue record therefore, in view of the provisions of Section 52 (4) once the notice under Section 52 (1) is issued the land vest in the State Government free from all encumbrances. 15. The next argument raised by the counsel for the petitioner regarding applicability of Section 11 (A) of the Act of 1894 in this matter is also not acceptable in view of the fact that the acquisition proceedings stands completed after taking over the possession of the land in dispute was back on 30.3.1977 after payment of compensation on 30.3.1977. Further in view of the Sec. 52 (4) of the Act of 1959 the land vest in the State Government free from all encumbrances after publishing the notice under Sec. 57 (1) in the Official Gazette. In my considered view Sec. 11 (A) of the Act of 1894 is not applicable in the facts and circumstances of the present case. The judgment cited by the counsel for the petitioner are not applicable in view of the judgment passed by the Hon'ble Supreme Court in the matter of Pratap (supra). 16. In my considered view Sec. 11 (A) of the Act of 1894 is not applicable in the facts and circumstances of the present case. The judgment cited by the counsel for the petitioner are not applicable in view of the judgment passed by the Hon'ble Supreme Court in the matter of Pratap (supra). 16. Thus, in view of the above discussion, the writ petition filed by the petitioner deserves to be dismissed, for the reasons: firstly, the petitioner was not a Khatedar of the land in dispute according to the Revenue records on the date when the first notice of acquisition was issued under Sec. 52 (2) of the Act of 1959 on 8.6.1976: secondly, in view of the Sec. 52 (4) of the Act of 1959 once the notice under Sec. 52 (1) of the Act of 1959 is published in the Official Gazette on 25.11.1976, the land in dispute vest absolutely in the State Government free from all encumbrances; thirdly, the compensation was duly paid to the Khatedar of the land in dispute and possession was also taken over by the State Government on 30.3.1977; fourthly, the provisions of Sec. 11 (A) of the Act of 1894 are not applicable in the present case, in view of the judgment passed by the Hon'ble Supreme Court in the matter of Pratap (supra). 17. In that view of the matter, the writ petition filed by the petitioner stand dismissed.