JUDGMENT
B.N. Kirpal, C.J.
1. This is a petition under Article 226 of the Constitution of India, challenging the acquisition of land in villages Padana and Meghpar in Jamnagar District, under the provisions of the Land Acquisition Act, 1894 (for short “the said Act”), for M/s. Reliance Petroleum Ltd. (Respondent No. 4).
2. Briefly, stated, the facts are that the petitioners allege that they are agriculturists having land at the aforesaid villages Padana and Meghpar. It appears that M/s. Reliance Industries Ltd. has made an application before, the Collector, Jamnagar District, to the effect that it needs land for setting up a refinery in Jamnagar District.
3. It appears that the Collector, Jamnagar made certain inquiries and measurements of some lands were taken. On 22-1-1993, an agreement was entered into between Reliance Industries Ltd., and/or Reliance Refineries Pvt. Ltd., under Section 41 of the said Act. According to the terms of this agreement, the company was directed to pay Rs. 2.10 crores. According to the petitioners, on 28-1-1993, the Collector sent the proposal to the State Government for approval for acquisition of the land. It seems that on 2-2-1993, the Assistant Collector was appointed as the Collector for the land acquisition proceedings, for the benefit of Respondent No. 4, and after the approval of the sub-committee of the Government was obtained, on 11-3-1993, the Notification dated 15-3-1993 was issued under Section 4 of the said Act.
4. The aforesaid Notification was published in the newspapers, and the substance of this was also placed on the Chavdi in the villages concerned. It may here be stated that the said Notification stated that it was intended to compulsorily acquire land described therein in villages Moti Chavdi, Padana, Meghpar, Lalpur, Sikka and Gagva.
5. According to the petitioners, after the issuance of the Notification under Section 4, objections were filed under Section 5A of the said Act, by about 89 agriculturists of these two villages of Padana and Meghpar. It is the case of the petitioners that no inquiry as required by law was conducted, an allegation which is vehemently denied by the respondents. It is, however, admitted that on 18-5-1994, Notification was published under Section 6 of the said Act for the acquisition of land in the said villages for the purposes of setting up a refinery, by Respondent No. 4.
6. Notices under Section 9 were issued and thereafter award dated 12-12-1994 was given whereby the sum awarded by way of compensation for the land acquired in village Meghpar was at the rate of Rs. 21- per sq. mtr. irrespective of the location or quality of land and in respect of village Padana, Rs. 2.50 per sq. mtr. was awarded as compensation in respect of Jirayat (non-irrigated) land and Rs. 3.00 per sq. mtr. for Bagayat (irrigated) land. On that day, i.e., 12-12-1994, notices under Section 12(2) of the said Act were also issued.
7. The present writ petition being S.C.A. No. 13525 of 1994 was filed on 20-12-1994. While a number of contentions have been raised, the only submissions which have been pressed at the stage of arguments are three, viz.;
(i) there is non-compliance with the provisions of Rule 3 of the Land Acquisition (Companies) Rules, 1963;
(ii) there is also non-compliance with the provisions of Rule 4 of the said Rules; and
(iii) no hearing as required was afforded and there has been violation of the provisions of Section 5A of the said Act.
8. On behalf of the acquiring authority, it has been contended by the learned Advocate-General that the procedure of the Land Acquisition Act with Part VII thereof was followed and inquiry was contemplated by Rules 3 and 4 of the said Rules was conducted and that the provisions of Section 5A had been scrupulously followed and observed as contemplated. It is further submitted that all the interested persons at every stage of the matter had been given an opportunity of being heard and they had represented their grievance. Furthermore, there was ample material before the Government before the issuance of Section 4 and Section 6 Notifications, and the Government had applied its mind with regard to the acquisition proposals by the Land Acquisition Committee. It is also submitted that there was no failure of justice at any point of time so far as the land owners including the petitioners and other interested persons are concerned. It is also submitted that the Supreme Court in the case of Shyam Nandcm Prasad and Ors. v. State of Bihar and Ors. , had held that inquiries under Section 5A, Rule 4 and Section 40 were complimentary to each other and should there be any deficiency or lacuna in one, then the other inquiry could be taken to cure such a lacuna. Lastly, it is submitted that unless there is a failure of justice, the Court should not interfere in the acquisition of land, which is for a company which is setting up a refinery which is greatly needed by the citizens of India.
9. For acquisition of land for companies, special provisions have been made in the Land Acquisition Act contained in Part VII of the said Act. It contains Section 38A to Section 44B. Section 39, after its amendment by Act 68 of 1984, requires previous consent of the Government and the execution of the agreement, before the provisions of Sees. 6 to 16 (both inclusive) and Sees. 18 to 37 (both inclusive), are applied. The consent which is referred to in Section 39 is not to be given unless the provisions of Section 40, requiring a previous inquiry, is complied with. As in the present case the land is sought to be acquired for the company, Section 40(1)(aa) as amended by the Land Acquisition (Gujarat Unification and Amendment) Act, 1965, requires that consent shall not be given unless the appropriate Government is satisfied by an inquiry, which is held to the effect that such acquisition is needed for construction of some building or work for a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose. The agreement which is required to be executed between the company and the appropriate Government has to be in terms of Section 41 of the Act, and the said agreement is to be published as provided by Section 42 in the Official Gazette.
10. In exercise of the powers conferred by Section 55 of the said Act, the Central Government made rules for the guidance of the State Government, which are to apply to acquisition of land for all companies in Part VII of the said Act. The two relevant rules for the present purpose are Rules 3 and 4, which read as under:
3. Land Acquisition Committee.- (1) For the purpose of advising the appropriate Government in relation to acquisition of land under Part VII of the Act the appropriate Government shall by notification in the Official Gazette, constitute a Committee to be called the Land Acquisition Committee.
(2) The Committee shall consist of-
(i) the Secretaries to the Government of the Department of Revenue, Agriculture and Industries or such other officers of each of the said Departments as the appropriate Government may appoint,
(ii) such other members as the appropriate Government may appoint, for such terms as that Government may, by order, specify, and
(iii) the Secretary to the Department or any officer nominated by him dealing with the purposes for which the company proposes to acquire the land.
(3) The appropriate Government shall appoint one of the members of the Committee as its Chairman.
(4)The Committee shall regulate its own procedure.
(5) It shall be the duty of the Committee to advise the appropriate Government on all matters relating to or arising out of acquisition of land under Part VII of the Act, on which it is consulted and to tender its advice within one month from the date on which it is consulted:
Provided that the appropriate Government may on a request being made in this behalf by the Committee and for sufficient reasons extend the said period to a further period not exceeding two months.
4. Appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings. – (1) Whenever a company makes an application to the appropriate Government for acquisition of any land that Government shall direct the Collector to submit a report to it on the following matters, namely:
(i) that the company has made its best endeavour to find out lands in the
locality suitable for the purpose of acquisition; (ii) that the company has made all reasonable efforts to get such lands by negotiating with the persons interested therein on payment of reasonable price and such efforts have failed;
(iii) that the land proposed to be acquired is suitable for the purpose;
(iv) that the area of land proposed to be acquired is not excessive;
(v) that the company is in a position to utilise the land expeditiously; and
(vi) where the land proposed to be acquired is good agriculture land, that no alternative suitable site can be found so as to avoid acquisition of that land.
(2) The Collector shall, after giving the company reasonable opportunity, to make any representation in this behalf, hold an inquiry into the matters referred to in Sub-rule (1) and while holding such inquiry he shall-
(i) in any case where the land proposed to be acquired is agricultural land consult the Senior Agricultural Officer of the district whether or not such land is good agriculture land;
(ii) determine, having regard to the provisions of Sees. 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land, which, in the opinion of the Collector, should be acquired for the company; and
(iii) ascertain whether the company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the land proposed to be acquired.
Explanation – For the purpose of this rule “good agriculture land” means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average productivity and includes a garden or grove land.
(3) As soon as may be after holding the inquiry under Sub-rule (2), the Collector shall submit a reported to the appropriate Government and a copy of the same shall be forwarded by the Government to the Committee.
(4) No declaration shall be made by the appropriate Government under Section 6 of the Act unless-
(i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any, submitted under Section 5-A of the Act; and
(ii) the agreement under Section 41 of the Act has been executed by the company.
11. It has been contended by Shri Desai, learned Counsel for the petitioners that the provisions, viz., Rule 4 and Section 5A of the Act are mandatory and that both the provisions have to be complied with. In support of his contention, the Counsel has drawn our attention to the decisions of the Supreme Court in the cases of-
(a) State of Gujarat and Anr. v. Patel Chaturbhai Narsinbhai and Ors. .
(b) Farid Ahmed Abdul Samad and Anr. v. The Municipal Corporation of the City of Ahmedabad and Anr. .
(c) Central Government Servants Co-operative Housing Society, Agra v. Wahab Uddin and Ors. ; and
(d) H.M.T. House Building Co-op. Society v. Syed Khader and Ors. . In the aforesaid decisions, the Supreme Court has in no uncertain terms held that the provisions of Rule 4 as well as Section 5A are mandatory and to be complied with.
12. The reason for holding that the aforesaid provisions are mandatory appears to be that not only it is required on the plain reading of the said provisions, but even otherwise, in the interest of justice, such a construction has to be placed. The acquisition which is covered by Part VII of the Act relates to the Government or the acquiring body coming to the aid of a private company, for acquiring land. This aid is required when the company has been unable to acquire land by private negotiations. Therefore, such acquisition for a private company would ordinarily be of land whose owners have refused to sell by private negotiations. The said acquisition is not for a public purpose, but is for the benefit of a private company and therefore, when an unwilling land owner is to be deprived of the ownership of the land, and practically in all cases relating to agricultural land, of his livelihood, it is but imperative that there should be strict compliance with the said Rules and Section 5A of the Act. It is to be borne in mind that as per Section 3(f) of the Land Acquisition Act, the expression “public purpose” does not include acquisition of land for companies. The learned Advocate-General has drawn our attention to the case of Shyam Nandan Prasad v. State of Bihar . In that case, it was held that compliance with the provisions of Section 5A of the Act was mandatory. Dealing with Section 5A and other relevant sections, the Supreme Court observed as follows:
All the same, the society as a public company would require to satisfy in a enquiry under Section 40 of the Act that it requires the land for any of the purposes mentioned in Clause (a), (aa) and (b) before it can obtain consent of the appropriate Government on the basis thereof and enter into an agreement as envisaged under Section 41 before switching on to have the role of Section 6 onwards till Section 37 of the Act played. The importance of such enquiry and report as contemplated under Section 40, in the light of Section 41, is to serve a double purpose as it may steer an acquisition if Section 5A was dispensed with because of urgency under Section 17 and secondly to provide a safe alternate should there be any fault in the conduct of enquiry under Section 5A of the Act. So one or the other must be kept handy and if per chance one is defective, when both existing, the other can be deployed to satisfy the requirement of law.
While referring to the aforesaid passage, it has been contended that if by chance, one inquiry is defective then the other can be deployed to satisfy the requirement of law.
In the aforesaid passage, however, there is no reference to the inquiry under Rule 4, but it only refers to inquiry under Section 5A and Section 40. On the other hand, in Shyam Nandcm Prasad’s case itself, at page 597, it has been held by the Supreme Court that in order to approach the Government with the request for acquisition, the company has to satisfy the provisions of the said Rules. At page 598, it was held, while referring to the earlier cases of the Supreme Court that Rule 4 is mandatory and has to be complied with.
In the present case, the facts do not show that there has been a strict compliance with the Rules or Section 5A of the said Act.
13. Coming first to the requirement for complying with the provisions of Section 5A, it will be necessary to refer to the facts as alleged in the affidavit filed on behalf of the respondents. It is not in dispute that the Notification under Section 4 of the said Act was issued on 15-2-1993. The same was published on 18-5-1993 and time to submit the objections was given upto 21-6-1993. In the said notice, it was also stated that the hearing of the objections would be on 21-6-1993 in the office of the Assistant Collector at Jamnagar at 12-00 noon.
14. It is the case of the respondents that the substance of the Notification under Section 4 was published at the Chavdis on 19-5-1993, 25-5-1993 and 29-5-1993 in the different villages. It is admitted that on 2-6-1993, the petitioners had filed their objections.
15. According to the respondents, on 11-6-1993, a letter was written by the Assistant Collector to the Mamlatdar instructing him to postpone the hearing which was scheduled for 21-6-1993 to 30-6-1993. It is contended by the learned Advocate-General that the copies of this letter were also addressed to the Talatis of the villages concerned, and on 14-6-1993, a letter was also written by the Mamlatdar to the respective Talatis to notify on the notice board that the hearing which was scheduled for 21-6-1993 was adjourned to 30-6-1993. It is further the case of the respondents that on 18-6-1993, notices were published at all the Chavdis and the Mamlardar’s office informing the interested persons that the hearing scheduled for 21-6-1993 stood adjourned to 30-6-1993 at 5-00 P.M. The respondents have also placed on record, the copy of the letter dated 21-6-1993 from the Mamlatdar to the Assistant Collector, recording that the hearing was now rescheduled on 30-6-1993, and advertisement to that effect was placed on the notice board at the Mamlatdar’s office. It is further the case of the respondents in the affidavit of Shri V.D. Asari, Deputy Collector, Jamnagar, that on 21-6-1993, no objector came and on 30-6-1993 also, no objector was present and thereafter the report was submitted after taking into consideration the written objections which had been filed. This report under Section 5A was submitted nearly six months thereafter, i.e., on 21-1-1994.
16. On behalf of the petitioners, on the other hand, affidavits have been filed in this Court by all the objectors contending that they did go to the office of the Assistant Collector on 21-6-1993, but no official turned up there, and no hearing took place. It is also their case that they were never informed about the date of hearing of 30-6-1993. It may incidentally be observed that many of these affidavits which have been filed are those which only bear the thumb impressions of the deponents, which seems to indicate that they were illiterate.
17. The dispute, therefore, would boil down to this, viz., whether the objectors knew about the adjournment of the hearing of their objections from 21-6-1993 to 30-6-1993. Normally, a disputed question of fact would not be gone into or decided by the writ Court, but when the dispute refers to a jurisdictional fact and more so, in a case where villagers living in small villages are sought to be deprived of their land, the Court would be failing in its duty if the correctness of such important and material averments made by the respective parties are not gone into. It is to be borne in mind that under Article 226 of the Constitution, the Court has jurisdiction to determine the disputed question of fact, but it is only because of self-restraint that normally such disputed questions are not gone into.
18. It is not in dispute that on 21-6-1993, no hearing took place. The contention of the respondents is that on the letter dated 11-6-1993 having been written by the Assistant Collector to the Mamlatdar, notices were put up at all offices and Chavdis on 18-6-1993 informing the persons of the adjournment to 30-6-1993. In support of this, reliance is placed on the Rojkams and the notices. The Rojkams and the notices relating to village Padana which have been placed on record show that the same are dated 22-6-1993. The hearing was to be on 21-6-1993, and therefore, the Rojkam dated 22-6-1993 cannot lead one to the conclusion that any information was given to the villagers on 21-6-1993 that their cases stood adjourned. It is, however, submitted that notices were also published on the Chavdis on 18-6-1993 and therefore, even if the Rojkam of village Padana was dated 22-6-1993, it does not mean that the villagers had no notice of the postponed date.
19. All the aforesaid facts relating to the letters being sent by the Assistant Collector to the Mamlatdar, and from Mamlatdar to the Talatis and of the notices being published on the Chavdis by the respective Talatis have been averred in the aforesaid affidavit of Shri V.D. Asari. Said Shri Asari was not dealing with this matter and he was not the authority or officer to whom powers had been delegated for acquiring the land at the relevant time. The competent authority, admittedly was the Assistant Collector. No affidavit of the Assistant Collector concerned, who gave the report under Section 5A of the said Act, has been filed. The affidavit of Shri Asari, dated 26-7-1995, also does not have any verification, and therefore, it is not known as to how he could depose that on 21-6-1993, none of the 89 villagers came to the office of the Assistant Collector. It is also not known as to on what basis said Shri Asari could assert that the notices were put up in the villages on the Chavdis on 18-6-1993. This work was supposed to have been done by the respective Talatis in the concerned villages, and no affidavit of any of the Talatis has been filed, nor does the record contain any report from any Talati with regard to the alleged putting up of the said notice on 18-6-1993.
20. The matter may be looked from another angle. Wide publicity had been given to the notices issued under Section 4 of the said Act, in which it was stated that the hearing was fixed for 21-6-1993 at 12-00 noon. This fact was known to the objectors because it was pursuant to this notice that the objections were filed. When this date of 21-6-1993 was sought to be altered on 18-6-1993 to 30-61993, then it was the duty of the Collector to see and to be satisfied that the objectors had due notice of the change of the date. No Rojkam of 21-6-1993 has been produced which show that on 21-6-1993, the case was listed and was then adjourned to 30-6-1993. In fact such a Rojkam could not be there because the submission of the respondents is that the adjournment was effected on 18-6-1993, when notices to that effect were put up. Therefore, if any of the objectors had come to the office of the Assistant Collector at Jamnagar on 21-6-1993, the question of their objections being heard on that day did not arise because their objections were not listed for hearing. No officer of the Department who was present in the office of the Assistant Collector on 21-6-1993 has averred that none of the objectors came there on that date. There is, therefore, every likelihood that the objectors did not get to know on 21-6-1993 that the hearing had been postponed to 30-6-1993.
21. A responsible officer like Assistant Collector, when he found that on 30-6-1993, no objector was present, ought to have, satisfied himself whether the objectors had notice of this date of hearing. It appears to be difficult to believe that 89 objectors who had refused to voluntarily sell their land to the company, despite the company’s best efforts, and thereafter filed objections after the publication of the Section 4 Notification would deliberately choose to remain absent on the date of hearing. Their entire land was going to be acquired and it was their case that they would be rendered unemployed and they would be deprived of their livelihood. Under these circumstances, we are not satisfied that the objectors had knowledge of the date of hearing.
22. In any case, merely putting up a notice on 18-6-1993 on the Chavdis of the villages, assuming it was done, would not, in our opinion, be sufficient notice of the adjourned date to the objectors. It is, no doubt, true that Section 5A of the Act does not require that individual notices must be sent to all the objectors. Nevertheless, the said section makes it obligatory to grant a hearing to the objectors. This means that they must have some notice of hearing. In this case, we are concerned with the objectors who are villagers, living in a remote area and a number of whom are illiterate. Normally when a Notification under Section 4 of the Act is published, there is also widespread publicity by beat of drums or by such other mode in the villages concerned. At that time, when the Notification under Section 4 was published, there must have been adequate publicity with regard to the filing of objections and the hearing of the same on 21-6-1993. On the other hand, when the hearing was adjourned to 30-6-1993, no such publicity appears to have been made. Mere fixation of notice of adjournment on 18-6-1993 at the Chavdis cannot be regarded as a proper notice of hearing to at least those villagers who were illiterate, and who had admittedly filed objections.
The hearing fixed on 21-6-1993 was being adjourned to 30-6-1993, at the instance of the Assistant Collector himself. It is not as if that any of the objectors had asked for an adjournment. It was, therefore, the duty of the Assistant Collector to see that the objectors had due notice of the adjourned date of hearing. He merely wrote a letter to the Mamlatdar and, possibly, to the Talatis. When no one turned up on 30-6-1993, his curiosity should have been aroused as to why there was absence of the entire lot of 89 objectors. The Assistant Collector did not choose to fix another date even though he did not submit a report for over 6 months. If there was no hurry and there appeared to be none, in the submission of the report under Section 5A of the said Act, then interest of justice and the provisions of Section 5A would have demanded another date for hearing being fixed and due notice being given to the objectors.
23. Another course, which was open but was not adopted was that the case formally could have been posted for 21-6-1993, and on that day, orders could have been passed for adjourning the case to 30-6-1993. If on 21-6-1993 the case had been listed and then adjourned to 30-6-1993, then, none of the objectors would have been heard to contend that they had no notice of the adjourned date.
24. It is, however, contended by the learned Advocate-General that an opportunity of hearing was granted, and in this connection, reliance is placed on the decisions in the case of Rambhai Lakhbhai Bhakt v. State of Gujarat and Ors. . In that case, a notice was issued under Section 5A, to the petitioner calling upon him to submit his written objections either personally or through an authorised person or Advocate and he was also informed that he can make a representation before the Deputy Collector at the time of producing the objections. Objections were to be filed within 30 days of the publication of the public notice. The petitioner therein, choose to send his objections by post and never appeared in person. When he was not heard, a writ petition was filed challenging the declaration under Section 6. On the High Court dismissing the writ petition, appeal was filed to the Supreme Court, which observed that the petitioner had not appeared in person either himself or through an Advocate, but had chosen to file his objections through post, and it would, therefore, be obvious that he did not intend to avail of the benefit of hearing while submitting the objections. In this connection, reference may be made to the following observations at page 756:
Admittedly, the petitioner had not appeared, either in person or through Advocate but had chosen to file his objections through post. It would be obvious he did not intend to avail the benefit of hearing while submitting objections. If it were a case that he personally appeared and filed objections and requested for hearing, but for one reason or other he was not heard, then time should be granted and perhaps it may be requested to be adjourned to a next short date to be heard. That would be a different circumstance to consider, i.e., whether failure to give such a date for hearing violates Section 5A(2). The petitioner having chosen to send the objections through post when the notice does indicate that he was to appear either in person or through Advocate or authorised representative alongwith objections, but failed, then there would be no need to give any further date of hearing.
The aforesaid observations would clearly support the contention of the petitioners before us that if for one reason or the other, the objector was not heard, then time should be granted. In the present case, the objector was not heard on 21-6-1993, not because of any adjournment or postponement having been sought by the objectors, but because of the Assistant Collector deciding that the case cannot be taken up for hearing on that date. This decision was taken prior to 21-6-1993, and we are not satisfied that the objectors had proper notice of the date to which the case had been adjourned.
25. We are, therefore, of the opinion that in the present case no proper opportunity had been granted to the objectors for hearing of their objections and we find it difficult to accept that the objectors had notice of the postponement of the date of hearing from 21-6-1993 to 30-6-1993.
26. We also find that there is non-compliance, in accordance with law, with the provisions of Sub-section (2) of Section 5A. According to this Sub-section the Collector is required to take the objections into consideration and then to make his report containing his recommendations on the objections and to forward the same to the Government along with the record of the proceedings. The report which was sent by the Collector to the Government purporting to be under Section 5A is dated 21-1-1994. After referring to the issuance and publication of Section 4 Notification, it is stated in this report that hearing was fixed for 30-6-1993, and on that day, no party having interest had remained present. Alongwith this letter, a statement was annexed purporting to be parawise remarks on the written objections, which had been filed. The objections were purported to be summarised in Column No. 6 of this statement in one or two sentences. Column No. 7 contained the remarks of the company. With regard to the objections, filed for Meghpar village, it is stated in this statement that the land should not be acquired. The comment of the acquiring body is that the land is absolutely necessary for the refinery and therefore, the question of not acquiring the same does not arise. The only remark, which is supposed to be the recommendation of the Assistant Collector is that he agrees with the remark of the company.
With regard to village Padana, at Sr. No. 4 and Sr. No. 6 the objections are summarised. The summary of the objections is that the land should not be acquired, and secondly that the land being fertile, it should not be acquired and other land should be acquired. Further objection is that arrangements should also be made for animals of the village. The comment of the company again is that the land is essential for the refinery, and therefore, it will have to be acquired. As far as the other demands are concerned, it is commented that they will be looked into. The Assistant Collector has merely put dot marks in the remarks column meaning thereby, he is in agreement with the remarks of the company.
27. When Section 5A(2) requires recommendation to be made on the objections which are filed, such parrot-like agreement with the submission of the company that the land is required for the refinery can under no circumstances be regarded as “recommendations on the objections”. The report under Section 5A would require all the objections being dealt with individually, or even collectively, and it must show application of mind on the part of the Assistant Collector. We have also gone through the objections filed by the villagers of Padana and find that all the objections which have been raised and essentially those with regard to the acquisition which would lead to unemployment of the villagers, have not even been summarised in this statement. There is nothing to indicate from this statement that such objection was seriously considered, and in any case, the remarks of the Assistant Collector to the effect that “he agrees with the remarks of the company” cannot be considered as amounting to recommendations on the objections. The recommendations would necessarily imply as already noticed, application of mind, and the observations of the Assistant Collector as to what extent, if any, the objections deserved acceptance. The recommendations may also contain some other suggestion/s on the objections which are made. Merely accepting the ipse dixit of the company as has been done in the present case, cannot be regarded as recommendation of the objections as provided by Sub-section (2) of Section 5A.
28. Apart from the non-compliance of Section 5A, there is in our opinion, non-compliance with Rule 3 and Rule 4 of the Land Acquisition (Companies) Rules, 1963.
29. Rule 3 requires that the appropriate Government, by a Notification, shall constitute a Committee to be called as Land Acquisition Committee. The constitution of the Committee is provided by Sub-rule (3) which stipulates that the Government shall appoint one of the members of the Committee to be its Chairman. Sub-rule (4) provides that the Committee shall regulate its own procedure, and according to Sub-rule (5), the Committee is required to tender its advice within one month from the date on which it is consulted. The proviso enables the Committee to make a request for extending the time. It is expected that the said rules have to be complied with prior to the issuance of the Notification under Section 6 of the Act. The question which, however, arises is whether such a Committee was constituted and, if it was, whether the other provisions of Rule 3 have been complied with? In an effort to show that the provisions of Rule 3 were complied the learned Advocate-General drew our attention to a letter dated 15-2-1994 written by the Deputy Secretary, Revenue Department to the Joint Industries Commissioner, and to the Deputy Secretary, Agriculture, Village Development and Co-operative Department. This letter, which was accompanied by a short-note for the acquisition of land for Reliance Industries Ltd., is as follows:
Sirs,
In regard to the aforesaid subject is to inform that in respect of the lands required to be acquired for Reliance Industries Petroleum the brief for approving the Notification under Section 6 is enclosed herewith and in this behalf, being a Member of the Land Acquisition Committee, you are requested to kindly furnish your opinion at the earliest.
In the affidavit of Shri Asari, it is stated that after the said letter of 15-2-1994, on 17-3-1994 the approval of the Deputy Secretary, Department of Agriculture, to issue Section 6 Notification was received. This letter stated as follows:
Sir,
In reference to your letter dated 15-2-1994 on the aforesaid subject (bearing No. JJM/1692/306/5) with the demand for acquisition of lands, which has been submitted by Reliance Industries Ltd. for establishing a refinery project in Jamnagar District, and on perusal of the details of note enclosed to you letter under reference, it appears that no difficulty seems to be there in allotting the lands required by Reliance Industries Ltd.
Yours faithfully,
Sd/-
This letter was followed by another letter dated 24-3-1994 from the Joint Commissioner of Industries, which was as follows:
Sir,
This refers to the unsigned note circulated for the view of the Committee Members. Pursuant to the decision of the State Government to proceed with the acquisition of the aforesaid and, certain local problems seem to have developed while implementing the process of acquisition.
We have no objection if the aforesaid problems mentioned in the unsigned note are settled to the satisfaction of the relevant parties by the Collector, who is the Competent Authority in that regard. It is also requested to discuss such issues by calling a meeting of the members in place of circular meeting.
Yours faithfully,
Sd/-
30. From the aforesaid letter received from the Joint Industries Commissioner, it is clear that no meeting of the Committee was ever held. It is only a note which was circulated which accompanied by the letter of the Deputy Secretary, Revenue Department, and the request of the Joint Industries Commissioner in his letter dated 24-3-1994 of calling a meeting of the members does not seem to have acceded to.
31. The Land Acquisition Committee is a statutory committee. Reading of Rule 3 leaves no doubt that this Committee has been entrusted with an important task of advising the Government on matters relating to acquisition of land under Part VII of the Act. It is not meant to be a Committee which is supposed to merely put its rubber stamp of approval on whatever is proposed to it. The Committee is supposed to represent the three important Departments connected with the acquisition of land, viz., the Departments of (i) Revenue, (ii) Industries and (iii) Agriculture, and it is required to regulate its own procedure. There is nothing to indicate that any member of the Committee was appointed as its Chairman, and the letters dated 17-3-1994 from the Department of Agriculture and 24-3-1994 from the Joint Commissioner of Industries written in their individual capacity cannot be regarded as the advice of the Committee. Furthermore, as far as Revenue Department is concerned, the aforesaid letter dated 15-2-1994 merely circulates the note amongst the other two members of the Committee, but it does not contain the advice of that Department itself. In these circumstances, reading the three letters together, it is not possible to accept the contention of the respondents that the said letter must be regarded as the advice which is tendered within the meaning of that expression in Sub-rule (5) of Rule 3. While the Deputy Secretary of the Agriculture Department has, in a way, signed on the dotted lines, the Joint Commissioner of Industries did refer to the problems which were mentioned in the unsigned note. When a Committee is constituted under Rule 3, the implication would be that it is required to give its advice on the problems which arise with regard to the acquisition of land under Part VII of the Act. Though the problems in connection with the acquisition are stated to have been set out in the unsigned note sent along with the letter dated 15-2-1994, in a hurry to complete the formalities, no trouble seems to have been taken to get any advice from the statutory Committee in this connection. We are, therefore, of the opinion that Rule 3 of the Rules has also not been complied with.
32. The next question that arises for consideration is whether the mandatory provisions of Sub-rules (1), (2) or (3) of Rule 4 have been complied with or not? Under Sub-rule (1), the Government is required to direct the Collector to submit a report with regard to six matters. Sub-rule (2) requires the Collector to hold an inquiry into the matters referred to in Sub-rule (1) and while holding the said inquiry, he is required to consult the Senior Agricultural Officer, if the land proposed to be acquired is agricultural land, and he is also required to determine the approximate amount of compensation likely to be payable in respect of the land, and he has to further ascertain whether the company had offered reasonable price to the persons interested in the land proposed to be acquired.
33. Two important documents on which reliance is placed by the respondents is a report dated 19-1-1993, sent by the Mamlatdar, Jamnagar to the Collector, Jamnagar, and a further report under Rule 4 made on 28-1-1993 by the District Collector, to the Additional Chief Secretary, Revenue Department. The letter of the Mamlatdar is as follows:
To
The Collector,
Jamnagar.
Subject: Land acquisition-Jamnagar, for acquiring the land for Reliance Industries Ltd.
Respected Sir,
In pursuance to your letter No. JMN/4/11/92 dated 13-11-1992 on the subject noted above, it is to state that regarding proposal of Reliance Industries Ltd. for acquiring land of private ownership of Motikhavdi, Sikka, Gagva of Jamnagar Taluka and Padana and Meghpar of Lalpur Taluka for its refinery, an inquiry has been held as per your direction, by the Circle Officer of this office, under Rule 4 of Land Acquisition Rules. During the work of measurement and work of survey the representatives of company have tried to obtain the land after discussing with occupiers and after holding private discussion. But only few occupiers out of them are desirous to give their land to company willingly. So the land of remaining occupiers are to be required to obtain as per provisions of land acquisition. As per the project report produced by company the land as per proposal of company, is suitable for the purpose of a company and it is not excess then requirement. As per the project report of company, they are in a position to use the land immediately on obtaining it. Out of the land which is demanded by company for acquisition only a few land is good cultivable and there is no alternative land in a position which can be acquired. Because if it is done so then the company can obtain the agriculture land of private ownership instead of it, and for that reason, the questions of road can be arose for getting in and out in the land of private ownership and it also can affect the security of the company. So all the proposed land is required to be obtained for acquisition.
Sd/-Illegible
Mamlatdar, Jamnagar.
34. The report dated 28-1-1993 of the Collector, Jamnagar, is as follows:
No. LAND-4-RE. E./JSP-JM-93
Office of the Dist. Collector, Jamnagar.
Dated 28-1-1993.
To
Addl. Chief Secretary
Revenue Department
Sachivalaya, Gandhinagar.
Subject: Land Acquisition – Jamnagar District
Regarding acquisition of private agricultural lands for purpose of “Company” by Reliance Industries Limited, Ahmedabad, for its Refinery Complex, Petrochemicals Complex, Power Plant and other amenities of company and its associates and subsidiary companies.
With respects,
In reference to the aforesaid subject it is to intimate that a demand has been received from Reliance Industries Limited, Ahmedabad, for acquisition of private and agricultural lands of Jamnagar District in Jamnagar Taluka, situated at villages-(a) Sikka, (b) Moti Khavdi and (c) Gagva and villages of Lalpur Taluka-(a) Padana and (b) Meghpar which are being survey numbers as shown in the village form attached at Annexure I with total area as shown against each for acquisition under provisions of the Land Acquisition Act or purpose of “Company” and for its correlated uses for purposes as stated in the said subject and the request for getting acquired lands received from Reliance Industries Ltd. as per rules is being forwarded herewith.
2. The approximate price of the aforesaid private agricultural lands comes to Rs. 8.40 crores and the deposit amount as per its percentage comes to Rs. 2.10 crores (two crores and ten lakhs only) which has been deposited by Reliance Industries vide Bank cheque; Kisan Vikas Bonds from these money have been purchased in the name of Reliance Industries Ltd. and kept with the Government.
3. Under provisions of the Land Acquisition Act, since it is necessary to obtain permission or orders from the Government for initiating proceedings for acquisition of said lands for aforesaid purposes for Reliance Industries-“Company” and therefore, it is requested to immediately arrange for obtaining orders from the Government for acquisition of the said lands.
4. The details of the exact area required, village-wise and survey number-wise with area of requisite land have been obtained by conducting joint survey from DILR, Jamnagar, and the “J.M.S.” report under para 104 is also enclosed herewith and forwarded to you.
5. The following papers/letters produced by Reliance Industries are enclosed. Hence, it is requested to kindly arrange to obtain necessary permission as per rules from the Government:
1. Questionnaire forms
2. Purpose for acquisition
3. Accompanying Statement of LLQ Proposal
4. Summary of total land required
5. Refinery site, village: Moti Khavdi
6. Refinery site, village: Padana
7. Refinery site, village: Meghpar
8. Tank Farm, Village: Sikka
9. Housing – Village: Moti Khavdi
10. Water Intek System – Village: Gagva
11. “Justification of Urgency Clause” Certificate
12. Plans/Maps of lands for various/different purposes in respect of lands surveyed
13. Demarcation certificate
14. Agreement
6. We have made necessary verification and assured ourselves in relation to provisions of Rule 4 of the Land Acquisition Rules Companies, 1963 and the demand of the company for acquiring the aforesaid private agricultural lands appears to be valid. Therefore, it is requested to pass/issue necessary order.
Sd/- Illegible
(Rajiv Takru)
Collector, Jamnagar.
35. It will be seen that the report dated 28-1-1993 does not say anything about Clause (ii) of Sub-rule (1) of Rule 4. It is not mentioned herein that the company made any efforts to find out land in the locality which was suitable for the purpose of acquisition and that such efforts were made to acquire land or payment of reasonable price. The report which is required to be submitted by the Collector under Sub-rule (3) of Rule 4 must deal with all matters contained in Rule 4. Bald assertions in the last paragraph of this letter of the Collector to the effect that they had made necessary verification and has assured himself in relation to the provisions of Rule 4, and that the demand of the company appears to be valid, cannot be regarded as a report as contemplated by the said Rule. There has to be a positive opinion of the Collector as to whether any reasonable effort for acquiring the land by negotiation, on payment of reasonable price was there or not. Nor does this report state anything with regard to the suitability of land or whether the land sought to be acquired is excessive or not.
36. It is contended that this report dated 28-1-1993 is based on the earlier report of the Mamlatdar dated 19-1-1993 and in paragraph 5 of this report, there is also a reference to the documents which had been produced by Reliance Industries Limited, which would answer all the points which are required to be answered by Rule 4. We are unable to accept this submission. Firstly, the report of Mamlatdar dated 19-1-1993 does not appear to find any reference in the Collector’s report of 28-1-1993. Secondly, Rule 4 requires application of mind of the Collector himself, and even though, particulars may have been furnished to him either by the Mamlatdar or by the company, the Collector himself, after applying his mind, has to give the requisite answers or opinion with regard to the matters enumerated in sub-rule (1) of Rule 4. Thirdly, the documents supplied by Reliance have to be commented upon by the Collector and his opinion formed.
37. In the affidavit of Shri Asari, reference is sought to be made to several Rojkams between 17-11-1992 to 21-11-1992, and also to other documents in an effort to show that the company had made reasonable efforts to acquire the land by negotiations with the private persons but had failed in those efforts. The affidavit of the Deputy Collector, who was not the acquiring authority, filed in these proceedings cannot be a substitute for a report required to be submitted under Sub-rule (3) of Rule 4. None of the Rojkams or the letter dated 17-11-1992 stated to have been written by the Collector to the Deputy Town Planner calling upon him to make valuation of the lands under acquisition, had been referred to by the Collector in his report dated 28-1-1993. The affidavit of Shri Asari also refers to letters written after 28-1-1993 with regard to the company acquiring land by negotiations. These facts pertaining to the period between May, 1993 and January, 1994, set out in the affidavit of Shri Asari, are wholly irrelevant because the report under Rule 4 had already been submitted on 28-1-1993.
38. There is another disturbing feature which is revealed by the affidavit of Shri Asari. According to Rule 4(1)(ii), the company has to make all reasonable efforts to get the land by negotiation with the persons interested therein, on payment of reasonable price. At page 931 of the record, an averment is made by Shri Asari that between September 1993 and April 1994, attempts were made by the company for obtaining consent of the land-owners on reasonable prices, and “Government Officers were accompanying representatives of the company”. Again at paragraph 8, of the said affidavit of Shri Asari (at page 945 of the record) it is averred that; “Revenue Officers accompanied by the representatives of the company tried to persuade the land-owners to give consent for acquisition of their lands. The prices offered for such consent acquisition were also more than the estimated compensation by the Collector. However, the land-owners did not agree in all cases to give consent for such acquisition.” Shri Asari further averred in the said paragraph 8 that “each one of the land-owners including the petitioners were given an opportunity to indicate why they were not willing to give their land by consent. The price offered was reasonable price in terms of rules.”
39. The aforesaid averments made in the affidavit of Shri Asari make it more than clear that the Revenue Officers of the State Government were bending over backwards in order to assist or pressurise the land-owners to give consent for the acquisition of their land. It is not made clear in this paragraph as to what were the rules according to which it is averred that “reasonable price was being offered”. The statutory Rule 4 of the Rules, 1969, onwards efforts being made by the company to purchase the land by negotiation. But in the instant case, efforts were being made by the Revenue Officers to purchase land for the company. No wonder, every fact stated, every document filed and every representation and claim made by the company seems to have been accepted at its face value by the acquiring authority without much ado. It would not be very wrong to say that “Reliance came, it saw and it conquered.”
It may here be noticed that in the case of State of Gujarat and Ors. v. Ambalal Haiderbhai , the Supreme Court has held that “although Rule 4 is silent regarding the mode and method of the inquiry to be held by the Collector and the report of the Collector to be recommendatory character, yet regard being had to the legislative history and purpose of the rule, and the mischief sough to be prevented, it must be held that, in conducting the inquiry, the Collector, has in the interest of fair play, to observe the principles of natural justice by affording the persons interested in the land a reasonable opportunity of being heard and of adducing material before the Collector to refute the allegations of the company.” No such opportunity has been granted in this case. All that the affidavit of Shri Asari states is that attempts were made by the Revenue Officers to persuade agriculturists to part with their land, when the said Revenue Officers were accompanying the representatives of the company. Even in Shayam Nandan Prasad’s case (supra) at page 598 in paragraph 17, with reference to Rule 3 the Supreme Court has held that the sufficient opportunity should be given to the land-owners to refute the case of the company at least in so far as the matter like negotiation of price is concerned, as also other relevant matters. Possibly, the reference by the Supreme Court was really intended in this passage to Rule 4 inasmuch as, it is subsequently stated in this paragraph itself that Rule 4 is mandatory. In the present case, no such opportunity has been granted by the Collector.
40. One further infirmity/non-compliance with the provisions of Rule 4 is that the Collector, prior to the submission of his report dated 28-1-1993, did not consult the Senior Agricultural Officer, as was required by Rule 4(2)(i).
It is the case of the respondents that on 16-11-1992, a letter was written by the Collector to the Senior Agricultural Officer, seeking his opinion on the lands proposed to be acquired. There is nothing to show that any report was made in pursuance to the said letter. The report of the Collector also makes no reference of his having consulted the Senior Agricultural Officer. Sub-rule (2) Rule 4 states that while holding an inquiry, the Collector shall, if the land proposed to be acquired is agricultural land, consult the Senior Agricultural Officer. This consultation is necessary in order to ascertain the quality of agricultural land. The said provision is mandatory. No doubt, on 16-11-1992, a letter was written by the Collector to the Senior Agricultural Officer, for his opinion. But no report was received prior to 28-1-1993.
41. The report of the Senior Agricultural Officer with regard to the quality of agricultural land cannot be regarded as a mere formality. India is primarily an agricultural nation. No doubt, there is desire to industrialise. However, effort is always made that good agricultural land is not converted for non-agricultural use. It is for this purpose that the Collector is required to consult the Senior Agricultural Officer, with regard to the quality of the agricultural land. According to the petitioners, the land which is sought to be acquired is good agricultural land. If their contention was correct and there was a report by the Senior Agricultural Officer in this behalf, it is possible, that the same might have influenced the State Government while taking the decision whether to acquire the land or not. Be that as it may, the fact remains that there was no consultation by the Collector with the Senior Agricultural Officer, and merely writing a letter to the said Officer, but getting no response, can under no circumstance be regarded as consultation as envisaged by the said provision.
42. For the aforesaid reason, we have no hesitation in coming to the conclusion that there has been non-compliance with the provisions of Rule 3, and Rule 4 of the Land Acquisition (Companies) Rules, 1963, and Section 5A of the Land Acquisition Act, 1894.
43. On behalf of the Company, Mr. Aran Mehta, vehemently contended that the petition should be dismissed on the ground of laches. It was submitted by the learned Counsel that the Notification under Section 4 of the said Act was issued on 15-2-1994, and on 18-5-1994, the Notification under Section 6 was issued. It was contended that there was inordinate delay in filing the writ petition on 20-12-1994. In support of this contention, the learned Counsel sought reliance on-
(a) AIR 1974 SC 2077 Aflatoon v. Lt. Governor of Delhi
(b) Ramjas Foundation v. Union of India
(c) Jeet Singh v. Union of India and
(d) Hart Singh v. State of U.P.
None of the above cases can be of any assistance to the company. In the first case, the delay was of 4 years after issuance of Section 6 Notification. In the second case, the Notification under Section 6 was issued in the year 1968-69 but the writ petition was filed in the year 1977. In the Delhi case, there was delay of 21 years in filing the petition. In the fourth case, the delay in filing the petition was 2Vi years.
44. In the instant case, the award was made on 12-12-1994. The petition was filed on 20-12-1994. The possession of the land was required to be handed over on 21-12-1994. Therefore, the petition was filed before the date, the possession was required to be given. In any case, we are here concerned with the case where the petitioners are villagers “who have come like David and have taken on Goliath, viz., Reliance Industries Ltd.” It is not possible to come to the conclusion that there was such delay as would amount to laches, which would disentitle the petitioners from getting any relief. Time cannot be computed from 15-2-1993 when Section 4 Notification was issued, because objections to the acquisition had been filed. Section 6 Notification was issued on 18-5-1994, and thereafter even if this was to be regarded as the relevant date, the petition has been filed within a period of about 7 months. Admittedly, negotiations were going on between the parties, and in fact, Mr. Mehta sought to make capital of the letter dated 25-10-1994, stated to have been written by the petitioner Nos. 1 and 2 in their capacity as Financial Consultants, in which they had demanded a higher price for the land which was sought to be acquired. Petitioner Nos. 1 and 2, after issuance of the Notifications under Sees. 4 and 6, perhaps saw the writing on the wall, and therefore, made an effort to get higher price by negotiations. These efforts failed and then the award was made on 12-12- 1994. In fact, such efforts were also made during the course of hearing of this petition, but without success. We are, therefore, unable to agree that the petition is liable to be dismissed either on the ground of laches, or on the ground that the petitioners had acquiesced or are estopped from challenging the acquisition merely because they had written the letter dated 25-10-1994, asking for more money.
As already noticed, the amount which was ultimately awarded by the Collector when he made the Award was only Rs. 21- per sq. mtr. for the land at Meghpar village and Rs. 2.50 per sq. mtr. for the Jirayat land and Rs. 3.00 per sq. mtr. for the Bagayat land in Padana village. While the amount of compensation which was being claimed by the petitioners was much more, perhaps the petitioners felt that they were entitled to receive such price as would enable them to rehabilitate themselves by acquiring other land. Prima facie, by offering to pay price which is less than the price of a pan, under no circumstances, could the petitioners be faulted.
45. For the aforesaid reasons, we have no hesitation in coming to the conclusion that the mandatory provisions of Rules 3 and 4, as well as of Section 5A of the Land Acquisition Act, have been violated, and therefore, we issue a writ of mandamus quashing the Notifications dated 15-2-1993 under Section 4 and 18-5-1994 under Section 6 of the Land Acquisition Act, as well as the Award dated 12-12-1994, in so far as they relate to the lands of the petitioners and other objectors (totaling 89 in number) in villages Padana and Meghpar. Rule made absolute accordingly. The petitipners are entitled to costs of Rs. 5,000/- from Respondent No. 4.
46. Desai, Counsel for the petitioners asks for restoration of the possession of the land, while on the other hand, the learned Counsel for the respondents pray for stay of operation of this judgment. We stay the operation of this judgment for a period of 8 (eight) weeks from today, as prayed by the learned Advocate-General. If the operation of this judgment is not stayed within that time, the respondents shall forthwith, thereafter, restore the possession to the petitioners. In the mean time, status quo with regard to construction on the disputed land shall continue.