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2023 DIGILAW 1220 (RAJ)

Chhatar Singh v. State of Rajasthan

2023-05-31

NUPUR BHATI

body2023
ORDER : (Nupur Bhati, J.) This writ petition has been filed under Article 226 of the Constitution of India, with the following prayers:- "i. The respondent may kindly be directed not to disturb possession and residence etc over the land admeasuring 3 bighas 16 biswas as indicated in para 6 of the writ petition in relation to land of khasra No 255 to 259 of village Indroka Khinchiya, Tehsil and District Jodhpur. ii. The impugned acts and omissions committed by respondents, whereby the respondents affixed mutams/pillars over the disputed land without acquisition and contrary to approved plan may kindly be quashed and deprecated and further the respondents may kindly be directed to remove such Mutams at their own costs and in the alternate iii. That respondents may kindly be directed not to disturb possession of petitioners over the excess land 03 bighas and 16 biswas as mentioned in Para 6 of the writ petition and further in the alternate if it is found necessary for development of project in question, then, the respondents may kindly be directed to acquire and pay compensation to the petitioners for aforesaid land while complying the provisions of Act of 2013. iv Any other appropriate writ, order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioners. v. Costs of the writ petition may kindly be awarded to the petitioners." 2. Brief facts of the case are that the petitioners are the co-sharers and recorded khatedars of the land bearing Khasra No.255 to 259. Since the respondent-JDA planned to construct bye-pass/ring road from Jodhpur-Jaisalmer Highway to Jodhpur- Nagore Highway, therefore, it issued a notification dated 18.03.2013 (Annex.2) under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act of 1894') for acquisition of the land in question. The petitioners raised objections under Section 5A of the Act of 1894 and submitted that the land in question is not suitable for acquisition to fulfill the alleged public purpose. The petitioners also submitted representations/ applications but the respondents, without considering the same, issued notification dated 08.07.2013 (Annex.3) under Section 5 of the Act of 1894 and public notice dated 02.09.2015 under Section 9 of the Act of 1894. The petitioners also submitted representations/ applications but the respondents, without considering the same, issued notification dated 08.07.2013 (Annex.3) under Section 5 of the Act of 1894 and public notice dated 02.09.2015 under Section 9 of the Act of 1894. The respondents, however, failed to determine adequate compensation, therefore, the petitioners preferred a writ petition, being SBCWP No.13132/2019 before this Court, wherein following order was passed on 25.09.2019:- "Admit. Isue notice. Notices to be given 'dasti' to learned counsel for the petitioner. No case for grant of stay is made out, therefore, stay application is dismissed. As far as addition land of 2 bighas, which according to petitioner is being taken for construction of highway, petitioner shall be free to take appropriate proceedings on the basis of survey/fard mauka report dated 29.07.2019." 3. It was alleged in the aforementioned writ petition that the respondents are in process to take possession of excess land ad-measuring 2 bighas 10 biswas in view of the site report dated 29.07.2019 (Annex.5) and since this Court directed to take appropriate proceedings on the basis of the said survey report dated 29.07.2019 (Annex.5), therefore, the present writ petition has been filed wherein, while issuing notices, on 03.03.2021, the stay application was dismissed. 4. The petitioners thereafter requested the respondents to make correct demarcation and measurement of the land in question in accordance with the site plan prepared for construction of ring road. The respondents though undertook the exercise to measure the land and found that excess land is being proposed to use in construction of ring road, which was not under acquisition but they did not choose to provide copies of the same. The petitioner thereafter approached the local surveyor approved by the UDS Department, who visited the site and made site inspection and found that the respondents are in process to take possession of total 3 bighas and 17 biswas land which was not under acquisition. 5. The petitioners preferred a special appeal against the order dated 03.03.2021 before the Division Bench being DB SAW No.389/2021, on 27.10.2021, following order was passed:- "Learned counsel for the appellants has removed the defects in the Court. This appeal is directed against the order dated 03.03.2021passed by the learned Single Judge in S.B. Civil Writ Petition No.766/2020 whereby, the writ petition preferred by the appellants-petitioners was admitted and the prayer for interim relief was rejected. This appeal is directed against the order dated 03.03.2021passed by the learned Single Judge in S.B. Civil Writ Petition No.766/2020 whereby, the writ petition preferred by the appellants-petitioners was admitted and the prayer for interim relief was rejected. Learned counsel for the appellants-petitioners urges that as per the documents filed with the writ petition, the respondents are proposing to construct the highway on a portion of the land belonging to the appellants-petitioners, which has not been acquired. The appellant's house is standing on that land. It is, thus, contended that the impugned action of the respondents deserves to be stayed. Issue notice, returnable on 22.11.2021. Mr. D.S. Rajvi, learned counsel is requested to accept notice on behalf of the JDA and Mr. Ankur Mathur, learned counsel is requested to accept notice on behalf of NHAI. Their names may henceforth be shown in the cause list. Till the next date, the appellant's house standing on the disputed piece of land shall not be demolished. List on 22.11.2021." 6. The aforesaid special appeal was disposed of by the Division Bench of this Court vide order dated 04.04.2023 as under:- "Heard. This appeal arises out of the order dated 03.03.2021 passed by the learned Single Judge by which the prayer for stay has been rejected. In this appeal, this Court directed the respondents to submit reports. The appellants have also filed some documents. These materials were not before the learned Single Judge when the application for stay was rejected. Taking into consideration that this appeal has been preferred only against the order rejecting the stay application and the matter is yet to be heard on merits by the learned Single Judge and since it relates to acquisition of land, we are inclined to set aside the order passed by the learned Single Judge and remand the case for consideration afresh on the prayer for stay. Learned counsel for both the parties shall be at liberty to refer to all the documents which have been filed by the respective parties in the appellate proceedings. The parties may also pray before the learned Single Judge for final disposal on the basis of the reports which have been brought on record in the appellate proceedings. The respondents may also pray for disposal at the earliest on the ground that due to interim order, the construction of road has been stalled. The parties may also pray before the learned Single Judge for final disposal on the basis of the reports which have been brought on record in the appellate proceedings. The respondents may also pray for disposal at the earliest on the ground that due to interim order, the construction of road has been stalled. Till the decision on the stay application, the interim order passed in the appeal shall continue. With the above observations and directions, the appeal is disposed off." 7. It is submitted that despite service, the respondents have not filed any reply to the earlier writ petition and also did not adequately measure and demarcate the site in question but are adamant to grab the land without acquisition. Hence, this petition. 8. Learned counsel for the petitioners submits that from the record it is clear that the respondents have passed an inadequate and perverse award dated 24.10.2015, without considering the fact that they have acquired excess land and despite submitting various applications/representations for adequate measurements and demarcation according to their own approved land, no heed is being paid. 9. Learned counsel for the petitioners further submits that the respondents have failed to determine adequate compensation in accordance with provisions of law and that without applying proper multiplication etc., the award has been passed and compensation has been determined without taking into consideration the requisite factors. 10. Learned counsel for the petitioners also submits that the petitioners approached the respondents for making correct demarcation and measurement of land in question in accordance with the site plan prepared for construction of ring road along with revenue map/record. The respondents undertook exercise to measure the land in question and found that excess land is being propose to use in construction of ring road, which was not under acquisition, but did not provide copies of such reports. The petitioners thereafter the approached local surveyor, who also found that excess land is being acquired. Therefore, the petitioners moved various representations in regard to the same but no heed was paid and are adament to take possession of the excess land without being acquired and without being awarding compensation. Therefore, this writ petition deserves to be allowed as prayed for. 11. Therefore, the petitioners moved various representations in regard to the same but no heed was paid and are adament to take possession of the excess land without being acquired and without being awarding compensation. Therefore, this writ petition deserves to be allowed as prayed for. 11. Per contra, Shri D.S. Rajvi, learned counsel appearing for respondent-JDA, raised a preliminary objection that the petitioners have an alternative and efficacious remedy available under Section 18 of the Act of 1894, therefore, the present writ petition is liable to be dismissed only on this ground. 12. Learned counsel for the respondent-JDA further submits that that the petitioners can also move application under Sections 111 and 128 of the Land Revenue Act, 1956 before the competent authority, who can decide the boundary of the khasras over which they are having khatedari rights. 13. Shri Rajvi, learned counsel also submits that the petitioners filed objection and the Land Acquisition Officer, after giving ample opportunities of hearing, passed a speaking order and recommended the land in question to be acquired and thus notice under Section 9 of the Act of 1894 was issued and declaration under Section 6 of the Act of 1894 was also issued. He also submits that after considering all the aspects of the matter, compensation has been determined and final award was passed. 14. Shri Rajvi, learned counsel submits that one Narayan Singh, submitted an application under Section 18 of the Act of 1894 qua the land baring Khasra No.258, upon which reference has been sent to the learned Civil Judge, Senior Division, Jodhpur Metro. But, the petitioners have not moved any application under Section 18 of the Act of 1894, which is the alternative remedy available to the petitioners, and hence, the writ petition is liable to be dismissed. 15. Learned counsel Shri Rajvi also submits that on 17.01.2023, a re-survey was conducted in compliance of the order dated 12.12.2022 passed by the Division Bench in DB SAW No.389/2021 in the presence of the petitioner and a difference of 0.0405 hectare land (0.5 biswa) was found which was surrendered to the State Government and the compensation had been received by the khatedars and the khatedars have also received compensation in lieu of land acquired being Khasra Nos.255, 256, 258, 259 and 447. 16. Heard learned counsel for the parties and perused the material available on record. 17. 16. Heard learned counsel for the parties and perused the material available on record. 17. Section 18 of the Act of 1894, reads as under:- "18 Reference to Court. (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made, (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, subsection (2), or within six months from the date of the Collector's award, whichever period shall first expire." 18. In the present case, the petitioners have raised objection regarding measurement of the land in question and also regarding inadequate compensation and for the same, the remedy is to file application under Section 18 of the Act of 1894, as quoted hereinabove. The re-survey was conducted by the respondents on 17.01.2023, however, the petitioners, if aggrieved by the re-survey report, have not challenged it. Admittedly, the petitioners have not filed any application under Section 18 of the Act of 1894. Hon'ble Supreme Court and this Court, in catena of decisions, have held that the High Court should not exercise its extraordinary writ jurisdiction where statutory alternative remedy is available to the litigant Unless it is demonstrated that the alternative statutory remedy under the Act is not an effective and efficacious remedy for the petitioner and here in this case, the petitioners have failed to demonstrate that the alternative statutory remedy available under Section 18 of the Act of 1894 is not a proper and efficacious remedy for the petitioner. This Court also, in the recent judgment dated 29.05.2003 in the case of Smt. Durga Bhati v. State of Rajasthan and Ors. (SBCWP No.14771/2017) has categorically held that this Court should not entertain a writ petition where alternative remedy is available to the litigant. This Court also, in the recent judgment dated 29.05.2003 in the case of Smt. Durga Bhati v. State of Rajasthan and Ors. (SBCWP No.14771/2017) has categorically held that this Court should not entertain a writ petition where alternative remedy is available to the litigant. In this case also, there is a statutory alternative remedy available to the petitioners under Section 18 of the Act of 1894 for redressal of their grievance. Thus, this Court does not deem it appropriate to interfere in the matter. 19. Hence, this writ petition is dismissed. The petitioners are at liberty to approach the appropriate forum in order to avail the alternative remedy available to them under Section 18 of the Act of 1894, who shall consider the same strictly in accordance with law. 20. The stay application and all other pending applications, if any, also stand dismissed. 21. Needless to say that the petitioners can approach this Court, if occasion so arises.