In the High Court of Judicature for Rajasthan Jaipur Bench **
1-Civil Writ Petition No.385/2002
Durgadevi Dharmarth Trust & Anr Versus State & Ors
2-Civil Writ Petition No.1364/1999
Smt. Girija Devi & Ors Versus State & Ors
3-Civil Writ Petition No.3477/1999
Naresh Chand Arora Versus State & Ors
4-Civil Writ Petition No.3722/1999
Prabhu Lal Meena Versus State & Ors
5-Civil Writ Petition No.4856/1999
Smt. Nirmla Sharma Versus State & Ors
6-Civil Writ Petition No.384/2002
Rajendra Nagar Adarsh Grah Samiti Versus State & Ors
7-Civil Writ Petition No.2133/2003
Arjun Nagar Vikas Samiti Versus State & Ors
8-Civil Writ Petition No.9094/2007
Yasmeen Abrar & Ors Versus State & Ors
9-Civil Writ Petition No.5260/2001
Yogesh Chand Arora Versus State & Ors
\Reportable/
Date of Order ::: 14/10/2011
Hon’ble Mr. Justice Ajay Rastogi
S/Shri Rajendra Prasad, RS Mehta, )
RD Rastogi, & Gaurav Sharma) for petitioners.
Shri Suresh Pareek, Sr. Advocate with )
Shaner Lal; & Shri Shailesh P. Sharma ) for Railway Board,
Shri PC Sharma ) for respondents-Union of India
Shri SN Kumawat, Addl.Adv.Gen., for respondents State
Shri Bharat Vyas with Mr. A.Chhangani,
Shri Madhav Mitra for other respondents.
Two notifications dt.19/08/1997 U/s 4(1) & declaration dt.13/01/1999 made U/s 6 of Land Acquisition Act 1894 (LA Act) are subject matter of challenge in instant bunch of writ petitions on several grounds; and the controversy since relates to self-same notifications of land acquisition, bunch of petitions were heard together at joint consent, and are being disposed of by present order. It would be necessary to narrate facts in short.
In order to improve the Train services in Rajasthan and also to meet expectations of public at large and provide more responsive administration, the Railways authority decided to create a new Zone, (North-Western Railway) with Zonal Head Quarter at Jaipur. In this regard, at one stage, the then Railway Minister requested the then Chief Minister of Rajasthan vide letter dt. 30/09/1996 to provide adequate land for constructing residential quarters of staff members and the Office of North-Western Railway Zone on being established. After a long correspondence having taken place with the State authority for making a suitable land available for establishment of Zonal Office and also for residential quarters of staff members, the Commissioner Jaipur Development Authority pursuant to correspondences with the OSD (North Wester Railway) Jaipur informed the Secretary to Transport Department for initiation of acquisition of the land at Todi-Ramjanipura vide letter dt.28/02/1997 and accordingly, the Secretary to Transport Department informed the Collector, Jaipur vide letter dt.29/03/1997 for initiating the proceedings for acquisition of the land at Todi Ramjanipura and it appears that pursuant to correspondence (supra), Department of Transport, Government of Rajasthan issued the proposed notification dt.19/08/1997 U/s 4(1) of LA Act duly published in Rajasthan Rajpatra dt. 28/08/1997 and in two daily news papers Rajasthan Patrika dt.06/09/1997 & Dainik Navjyoti dt.07/09/1997 for acquiring different parcel of land in all admeasuring 15.50 hectares of two villages Bindayaka & Todi Ramjanipura (Jaipur district) for establishing office & construction of North-Western Railway Zone in Jaipur and staff quarters. Local publication was also made on 10/04/1998 and vide notification dt. 19/08/1997, State Govt. authorised SDO-II/Land Acquisition Officer/Collector, Jaipur & subordinate thereto to enter into the land for the purposes stated therein.
The notification recited that the land under acquisition is likely to be needed for public purposes for establishment of Zonal Office of North-Western Railway Zone and for construction of residential quarters for the staff members. As a result of notification U/s 4(1) of LA Act, objections were invited U/s 5A from the persons whosoever considered to be interested and submitted objections which were entertained; taking note thereof & after inquiry U/s 5A of LA Act, report was submitted by Land Acquisition Officer (LAO) on 11/08/1998 and consequently a declaration was made by appropriate Government U/s 6 on 13/01/1999 which was published in Official Gazette on 21/01/1999 and the Sub Divisional Officer Jaipur was authorised to acquire the land. But it is admitted that the land was acquired for the construction of staff quarter for North-Western Railway Zone.
After declaration being made, public notices U/s 9 were issued by LAO notifying to the persons interested at convenient places in the said locality in regard to the intent of appropriate Government to take possession of the land and taking note of objections submitted, the Award came to be passed by land Acquisition Officer on 21/03/2011. Both the notifications issued U/s 4(1) & consequential declaration made U/s 6 of LA Act and so also Award dt.21/03/2011 are subject matter of challenge in instant bunch of petitions.
These petitions are being contested by the respondents, State Govt, its local authorities & Railway Board besides private respondents on being impleaded as party respondents in few of petitions since one of the plea raised by petitioners was that very proceedings initiated are discriminatory due to parcel of adjacent land being left out from being acquired, and it is in violation of Art.14 of the Constitution.
Counsel for petitioners jointly submit that notification of the proposed acquisition U/s 4(1) and declaration U/s 6 of LA act requires satisfaction of appropriate Government which is defined in S.3(ee) as meaning in relation to acquisition of land for the purposes of the Union, and in relation to acquisition of land for any other purposes, the State Government; and in the present case, as the land had admittedly been acquired for the purposes of construction of staff quarters of railway establishment, such acquisition was for the purposes of Central Government and thus appropriate Government is the Central Government and the notification could neither be issued by the State Government nor could the satisfaction of the State be a valid satisfaction as required under provisions of S.6 of the Act. In support, Counsel placed reliance upon decisions in Balak Vs. State of Uttar Pradesh (AIR 1962 All. 208); Ramdas Thanu Dessai Vs. State of Goa (2009 (2) Bom.CR p.218); State of Bombay Vs Ali Gulshan (AIR 1955 SC 810); TD Corporation Ltd Vs. State of Assam (AIR 1961 Assam 133) & Jayanati Lal Amratlal Shodhan Vs. FN Rana (AIR 1964 SC 648).
Counsel for petitioners further submits that parcel of the adjacent lands has been left out from acquisition since it belonged to influential persons who have been subsequently impleaded as party respondents in few of petitions and the site plan available on record clearly discloses that scheme of Farm houses was existing even prior to the acquisition; and since the land of Farm houses belonged to a class of influential persons like IAS & IPS officers of the State, and being elite class of the society & interested in saving their land, they have influenced the decision making process and adjacent parcel of the land was acquired basically for staff quarters (Officers & employees) and other alternatives have not been examined while taking the decision of proposed acquisition, and it was not a waste land & was in active consideration with the Jaipur Development Authority for regularization; and it being discriminatory, action of respondents is in violation of Art.14 of the Constitution of India.
Counsel for the petitioners further contend that a number of houses were constructed by petitioners on their land being allotted by Co-operative Housing Societies; and that apart the acquisition was proposed against a dead person (CWP-385/2002) Chandra Bhan Sharma, who died way back on 20/06/1992 and all proceedings have been carried out against dead person despite the petitioner being owner of the land after transfer of title vide registered sale deed executed in 1986, viz. prior to the acquisition impugned, but he was not afforded opportunity of hearing at any stage and very proceedings initiated against dead person is void ab initio; and in support, Counsel placed reliance upon decision of this Court (DB) in Bishambar Dayal Vs. State (1991(1) WLC (Raj.) 686).
That apart, Shri RS Mehta, appearing on behalf of plot-holders allotted by Societies submits that no survey was undertaken by respondents while proposed acquisition being initiated U/s 4(1) of LA Act and despite objection being raised U/s 5A, pursuant to which hearing was not afforded to the objectors and declaration was made on 13/01/1999 which was in flagrant violation of principles of natural justice and the proceedings qua them deserve to be quashed & set aside.
Lastly in alternate, it has been contended by Sri RD Rastogi that their allotted plots deserves to be regularised in view of Circulars dt.10/07/1999 read with dt.26/05/2000 issued by the State Government.
Writ petitions have been contested by Shri SN Kumawat, Addl. Advocate General, Shri Suresh Pareek, Senior Advocate appearing for Union of India (Railways) and Shri Bharat Vyas, & Shri madhav Mitra, appearing for some of the private respondents.
While contesting each of points raised on behalf of petitioners, Shri Suresh Pareek, Senior Advocate raised preliminary objection that very notification impugned herein were challenged by one of the persons interested (Dinesh Sharma) in CWP-3721/1999 which came to be dismissed vide order dt. 21/04/2003 and it was assailed before Division Bench in Special Appeal (Writ) No.708/2003 which was dismissed vide order dt.26/04/2004 – in the light of orders (supra), instant petitions assailing self-same notifications, may be on different grounds, are barred by principles of res judicata, and are not maintainable and has further urged that since there was inordinate delay in filing of instant petitions, bunch of these petitions deserve to be dismissed.
In counter to preliminary objections raised by Govt. Counsel, petitioner’s Counsel placed reliance upon decision of Apex Court in Oriental Insurance Co. Ltd Vs. Smt. Raj Kumari (AIR 2008 SC 403) & Vishnu Dutt Sharma Vs. Manju Sharma (AIR 2009 SC 2254).
This Court does not find any merit in preliminary objections raised by respondents’ Counsel for the reason that the points urged in instant bunch of petitions were neither raised nor considered nor came to be examined by the Court earlier in CWP-3721/1999 & Special Appeal (Writ) No.708/2003 (supra) and that apart, the parties thereto are not the same, that being so, principle of res judicata in the facts of group of petitions has no application and few of the petitions were filed at the stage of declaration made and the question raised for consideration is the same and they cannot be denied of their right of audience while assailing the self-same notifications impugned.
On merits, Counsel for respondents submits that State Govt was appropriate Government and the acquisition in question is primarily proposed for construction of staff quarters of North-Western Railway employees, which is not for the purposes of the Union and the acquisition of land is for other purpose, the State Government is the only appropriate government U/s 3(ee) of LA Act.
In regard to the objection raised by petitioners that some of land belonging to influenced persons have been left out from acquisition under notifications impugned, Government Counsel submits that the land on being considered to be suitable & required for the purpose have been acquired; and that being a policy matter, unless discretion exercised by State authority is found to be wholly arbitrary or invoked for any other collateral reasons, that cannot be interfered with in a limited scope of judicial review U/Art.226 of the Constitution of India.
Counsel for respondents further contends that description of land holder in the proposed notification & declaration was of the recorded khatedars and if persons interested are allottees and has not adopted proper recourse for mutation in revenue records, the action cannot be said to be bad in law; and that apart, Dikshant Sharma claiming to be Managing Trustee of Chandra Bhan Sharma had participated in acquisition proceedings and his objections have been considered in para 8 of the Award of acquisition dt.21/03/2001 and the same having remained a technical objection no prejudice was caused to the persons interested in the acquisition proceedings.
This Court has considered rival contentions advanced at the bar and with their assistance, pondered over the material on record. Before dealing with submissions made by parties, this Court would like to take note of few facts of different writ petitions assailing self same notifications impugned herein.
In CWP-385/2002 (Durgadevi Dharamarth Trust Vs. State) it has come on record that petitioner-1 is a registered charitable trust and petitioner-2 is Dikshant Sharma claimed himself to be Chairman & Trustee of petitioner-1 (Trust), who looses his title and interest in the land after it was sold to petitioner-2 vide sale deed dt.17/05/2001 and to whom possession was transferred much after passing of the Award dt.21/03/2001.
CWP-2133/2003 was filed by Arjun Nagar Vikash Samiti registered under Registration of Societies Act, whose members are allottees of plots allotted by National Housing Co-operative Society (respondent-6). Petitioners-4 & 5 are allegedly recorded khatedars and in acquisition proceedings, Panna Kumari & Girija Devi both have participated in acquisition proceedings apart from other number of allottees & recorded khatedars as is evident from Award dt. 21/03/2001.
CWP-384/2002 has been filed by Rajendra Nagar Adarsh Grih Nirman Sahkari Samiti which is a registered society under Registration of Societies Act, and has claimed that the society has purchased the land bearing khasra No.(Old) 138, 139, 140, 141 & 144 of TodiRamjanpura, admeasuring 5.27 hectares vide registered sale deeds (Ann.1 to 3) having been indisputably executed prior to initiation of acquisition proceedings impugned and after demarcation into plots, it was sold to various allottees.
Rest of the writ petitions have been preferred by various allottees, to whom plots have been allotted by different co-operative housing societies after having purchased the land allegedly on agreement to sale through recorded khatedars of the land in acquisition impugned.
The first & foremost question raised by instant petitioners, is as to who is the appropriate Government and whether purpose of acquisition impugned is for Union of for any other purpose; and it must have been made either for Union or State Government acting on behalf of Central Government.
Prior to Constitution (7th Amendment) Act, 1956, Item 33 of List I of 7th Schedule provided for acquisition for Union purposes, and item-36 of the State List provided for acquisition or requisition of property except for the purposes of the Union subject to the provisions of entry 42 of List III of concurrent legislative list speaks of ‘the purpose of the Union or of a State or any other public purpose.
Item 42 List III prior to Constitution (7th Amendment) Act, 1956 provided for principles on which compensation for property acquired or requisition for the purposes of the Union or of State or for any other public purpose is to be determined and the form and manner in which such compensation is to be disbursed.
However, vide Constitution (7th Amendment) Act of 1956, item 33 of List I & item 36 of List II have been omitted and the entire subject of acquisition & requisition of property has been placed in List III of the Concurrent List. The effect of 7th Amendment of the Constitution appears to be that legislative power in respect of acquisition and requisition of property is vested in the Union Parliament and the State Legislature within their territories even though for purposes of the Union. The effect of 7th Constitutional amendment came to be examined by Full Bench of the High Court of Assam in TD Corporation Ltd Vs. State of Assam (AIR 1961 Assam 133) ad infra:
By the Constitution (Seventh Amendment) Act, 1956, item 33 of List-I and item 36 of List II has been omitted and the entire subject of acquisition and requisition of property has been placed in the concurrent List. It is argued that by this amendment under the proviso to Article 73, the executive power of acquisition is now left to the State. The power of the Union Government does not extend by virtue of Article 73to acquisition of property and as such there could be no question of delegation by the President of the aforesaid power to the State Government.
If the effect of the Seventh Amendment of the Constitution is to place the executive power for acquisition in the hands of the States alone, even though the acquisition may be for the purposes of the Union and further the States have been empowered to legislate for acquisition of the property within their territories, even though for the Union purposes, it is difficult to hold that the State government cannot acquire the land for the Union Government under the Central Act. By the amendment, the distinction between the Union purpose and the State purpose has in effect been abolished and a power has been given to the State Government to acquire land for any purpose which may be regarded as a public purpose which may be regarded as a public purpose so long as the property is within its territorial jurisdiction and the State Government will in such cases also be the appropriate Government within the meaning of S.3(ee) of the Act.
It is relevant to record that after the Railways (Amendment) Act, 2008 having been deemed to have come into force on 31/01/2008 and having received assent of the President on 28/03/2008, Railways itself has been authorised by Central Govt. under notification to perform functions of competent authority to initiate acquisition proceedings for special railway projects under Chapter IV-a inserted vide Railways Amendment Act, 2008 as defined U/s 37-A of Railways Act.
That apart, earlier under Chapter VIA of Rajasthan Land Acquisition Act, U/s 37A, the State Govt. was competent to acquire land situated in the State, for any public purpose being a purpose of the Union, if a request in writing being made by Central Govt. or any officer thereof generally/specially authorized on this behalf. However, the State Act has been repealed by the Act of 1984.
That being so, the acquisition irrespective of whether for purposes of the State or the Union being within the legislative competence is also within its executive powers of the State. Expression “appropriate Government” has been defined in S.3(ee) of LA Act ad infra:
(ee) the expression appropriate Government means, in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the State Government.
U/s 3(ee), appropriate Government in relation to acquisition of land for the purposes of the Union, is the Central Government, while in relation to acquisition of land for any other purposes, is State Government.
At the same time, “public purpose” has been defined in S.3(f) of LA Act. However, it is not the case of either of parties that the acquisition impugned is not for public purpose as defined in S.3(f) of LA Act.
However, purpose of the “Union” has not been defined anywhere in the LA Act. The words, “for the purposes of” in the definition of expression “appropriate Government” cannot be equated with the words for “construction of staff quarters” by Railways.
It would be relevant to record and admitted by the petitioners that the proposed land is basically needed and acquired for construction of staff quarters of railway establishment. It does not necessarily follow that the purpose is for Union. Whenever zonal office for railway is established, Staff quarters are to be provided at nearby place.
North Western Railway has published “Accident Manual” that discloses that in case of serious accidents, the action has to be taken within scheduled time for the purposes of public safety & security, during which medical relief team has to arrive at the site and has to co-ordinate & obtain the required data about the injured & dead for being furnished to the originating & destination stations of the affected train, the zonal head quarter as well as the Railway Board. In view thereof, decision at site is required to be taken obviously by staff members of railway establishment. Duties have been assigned to the Divisional Security Officer and the time has been fixed for turning out of medical relief Van from the siding & their dispatch from the stations.
It is further relevant to record that a particular building constructed for purposes of quarters, may be for the staff members posted in Zonal office of Railway establishment under Central Govt but its ultimate beneficiaries will be the passengers being public at large of the State; in such circumstances, it is for the purpose of State and Union, as well being for public benefits, in which the State is equally interested as the Central Government.
Benefits upon construction of staff quarters at nearby place being for public safety will ultimately be derived by general public at large; that being so, it is a public purpose and not a purpose of the Union alone. It is essential for a public benefit to which the State is as much interested as the Central Government and it does not necessarily mean that the acquisition was for the Union purpose and the purpose ceased to a State purpose provided U/s 3(ee) of the LA Act.
In State of Bombay Vs. Ali Gulshan (AIR 1955 SC 810) question for consideration was as to whether the Government of Bombay was entitled to requisition, as for a public purpose, where certain premises for “housing a member of the staff of a foreign Consulate” was a public purpose ?; and even if it may be regarded as appertaining to a Union purpose, the Apex Court upheld that the purpose for which the requisition was made was a “public purpose” within the meaning of the Act; however, further held that even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, but it does not necessarily cease to be a “State purpose” or a general public purpose. It was a case where the requisition was made under S.6(4)(a) of the Bombay Land Requisition Act, 1948 as quoted in Ali Gulshan case (supra) which provided ad infra:
(3) Clause (a) of subsection (4) of section6, omitting portions unnecessary for our present purposes runs, in these terms:-
“The State Government may, by order in writing, requisition the premises for the purpose of a State or any other public purpose, and may use or deal with the premises for any such purpose in such manner as may appear to it to be expedient”.
In Bombay case of Ali Gulshan (supra), the argument was that as the foreign affairs was the responsibility of the Central Government, it was an obligation of the Union Government, to provide for the housing of the staff of the consulate and thus it was a Union purpose and neither a State purpose nor any other public purpose; therefore, the premise could not be requisitioned under aforesaid provisions of the Bombay Act. However, this argument was repelled and observed ad infra:
“There is another way of looking at the question involved. An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose. Even if one may regard the requisition of a room for the accommodation of a member of Consulate as one appertaining to a Union purpose it does not necessarily cease to be a State purpose or a general public purpose.
At p.812 (AIR 1955 SC), the Apex Court further observed ad infra:
….It can hardly be said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the Union for which the State cannot legislate. It was conceded by Mr.Rajinder Narain, Counsel for the Respondent, that there is no duty cast upon the Union to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of a Consul in modern times are to protect the interests and promote the commercial affairs of the State which he represents, and that his powers, privileges and immunities are not analogous to those of an ambassador. The trade & commerce of the State which appoints him with the State in which he is located are his primary concern. The State of Bombay is primarily interested in its own trade & commerce and in the efficient discharge of his duties by the foreign consul functioning within the State. We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Union purpose.
On the same reasoning, it is to be recorded that it is as much the duty of State Government to see that the land is provided to Railway establishment for construction of houses for its staff as that of Central Government and the State Government is equally interested in the efficient carrying out of the plan of the Central Government (Railway) in regard to establishment of its Zonal Office and obviously the Zonal office is directly associated with railway establishment which has to provide the land for staff quarters, as well.
In considered opinion of this Court, the land acquired by State Govt for enabling Central Government (Railway) for construction of staff quarters for railway establishment (Zonal Office) does not necessarily mean that the acquisition was for “Union purpose” and the purpose is ceased to be for any other purpose which the State Government is competent being appropriate Government within the meaning of S.3(ee) for initiating acquisition proceedings under the LA Act.
In the judgment on which Counsel placed reliance in Jayantilal Amratlal Shodhan Vs. FN Rana (AIR 1964 SC 648), primary question for consideration before Apex Court was regarding the effect of Notification dt.24/07/1959 issued by President U/Art.258(1) of the Constitution, and it has no application in the facts of instant cases.
In another judgment relied by Counsel for petitioner in Balak Vs. State of UP (AIR 1962 All.208), notification of acquisition was indisputably issued for construction of staff quarters in connection with North-Eastern Railway Head Quarters Scheme; but it appears that primarily acquisition proceedings were for Union purpose and the Central Government being appropriate Government relating to acquisition of land which could take action for acquiring the land, was not disputed between the parties and the question arose as to what will be the effect of notification issued by Government of India delegating powers to the State Government in exercise of its power U/Art.258(1) of the Constitution, if the President delegates power to the State Government, but it could not have been delegated by Central Government and the Court finally observed that U/Art.258(1) it is only the President who can delegate his functions to the State Government and there is nothing in the Constitution to suggest that the Central Government may act on behalf of the President for purposes of Art.258(1) of the Constitution, hence held that it was not open to the State Govt to issue notification U/Ss 4 & 6 of LA Act on behalf of the Central Government.
That apart, it appears that in Allahabad case (supra), effect of 7th Constitution Amendment Act, 1956 pursuant to which Item 33 of List I & item 36 of List II have been omitted, was not taken note of, alongwith Item 42 List III while examining the controversy.
Further judgment cited is of High Court of Bombay (Panaji Bench) in Ramdas Thanu Dessai Vs. State of Goa (2009(2) Bomb CR p.218) wherein judgments of (1) Allahabad High Court in Balak Vs. State of UP (supra), (2) Assam High Court in TD Corporation Vs. State of Assam (supra), & (3) Calcutta High Court in Sudhanshu Vs. State of WB (supra) have been referred to. However, it was a case where the acquisition was initiated for construction of railway line & cargo handling terminal at Shelvona & Xic-Shelvona Villages of Quepem Taluka for South Western Railway; and that being railway project it was considered to be purpose of the Union.
However, in the instant case, the land was not acquired for any railway project but for construction of housing quarters for the staff members, which cannot be considered to be a railway project. As observed (supra), the land was acquired by State Government for enabling the Central Government to provide housing quarters to the railway establishment, it does not necessarily mean that the purpose of acquisition was for the Union and is ceased to be State purpose or general public purpose provided U/s 3(ee) of LA Act.
The second contention advanced on behalf of petitioners that the action was discriminatory and parcel of the land was not acquired in which influential persons were interested and some of the allottees have been impleaded as party respondents. The counter affidavits have been filed by few of them and it has come on record that the Officers who are respondents in few of the petitions, came into existence much after Award dt.21/03/2001 being passed by LAO; and merely because it was later on purchased by few of the bureaucrats or other individuals, no inference can be drawn that parcel of adjoining land has not been acquired by State Government for the reason that few individuals/bureaucrats were interested and it was discriminatory & in violation of Art.14 of the Constitution.
At the same time, it is always for the satisfaction of State Government based on reports sent by LAO to acquire a parcel land suitable for public purpose and the land of present petitioners have been acquired on being considered as suitable for public purpose. However, it is not the case of either of parties that the purpose for which the land has been acquired is not the public purpose as defined in S.3(f) of LA Act. It was considered by Apex Court in Bharat Singh Vs. State of Haryana (AIR 1988 SC 2181) ad infra:
17. Lastly, it is argued by Mr. Goburdhan for the writ petitioners that the petitioners have been discriminated inasmuch as the land of other persons in the village has not been acquired. This contention is without any substance whatsoever. The Government will acquire only that amount of land which is necessary and suitable for the public purpose in question. The land belonging to the petitioners have been acquired obviously considering the same as suitable for the public purpose. The petitioners cannot complain of any discrimination because the land of other persons has not been acquired by the Govt. The contention is devoid of any merit whatsoever.
and also by Co-ordinate Bench of this Court in Nathulal Vs. State of Rajasthan (AIR 1998 Rajasthan 245) ad infra:
10. The petitioners contention that as some of the lands have been left out of the acquisition and only their lands have been acquired resulted into discrimination, cannot be accepted. It is the satisfaction of the State Government based on the report sent by the Land Acquisition Officer to acquire all the lands notified or to acquire only some of them. Even if it is assumed that the State Government gave wrong exemption, the petitioners cannot succeed on the plea of Article 14 of the Constitution. It has been held in the case of Yadu Nand Garg Vs. State of Rajasthan (1995 (8) JT (SC) 179: (AIR 1996 SC 520) as follows (Para 5 of AIR):
The wrong exemption under wrong action taken by the authorities will not cloth others to get the same benefit nor can Article 14 be pressed into service on the ground of invidious discrimination.
In view of the legal position propounded by the Apex Court, the observations made in the case of UIT Vs. Balveer Singh (AIR 1985 Rajasthan 71) (supra) do not help petitioners. Thus, this contention of Mr. Bhandari also fails.
In view of what has been observed (supra), contention of petitioners’ Counsel alleging discrimination in the process of acquisition being adopted by State Government is without substance and deserves rejection.
As regards contention advanced by petitioners’ Counsel that proceedings having been initiated against dead persons are void qua them, it is of no substance for the reason that no mutation was made after recorded Khatedar Shri Chandra Bhan having died on 28/06/1992 and that apart, Shri Dikshant Sharma being Chairman/Trustee of petitioner-1 Trust had participated in acquisition proceedings and it is not his case of opportunity not being afforded to him in acquisition proceedings initiated under LA Act and his participation is also evident from the Award dt.21/03/2001 and all of his objections have been referred to in para 8 of the Award impugned. In the facts of instant case, no prejudice can be said to have been caused to any of petitioners on account of name of dead person being shown in the notifications impugned.
It was also considered by Division Bench of this Court in Gajadhar @ Gangadhar Vs. State of Rajasthan (2003 WLC Raj 524) ad infra:
16. ….In view of these undisputed facts, the notification under section 4(1) of the Act is not bad. The names therein have been shown as Khatedar tenants as per the revenue record. Subsequent corrections made therein will not render it invalid. That apart, admittedly the petitioners which includes Smt. Vimla widow of Vali Prasad in response to the notification under section 4(5) of the Act filed their objections against the proposed acquisition of the land before the Land Acquisition Officer. The legal heirs of late Vali Prasad has a notice of this acquisition and right of filing objection has been availed of. It is not the case where otherwise also by mentioning the name of dead person Vali Prasad in the notification prejudice has been caused to his heir & legal representative.
But in view of any prejudice being caused, mere mention of dead persons in the acquisition notifications, prejudice cannot be considered to have been caused to his legal heirs.
In the judgment on which petitioner’s Counsel placed reliance in Bishambhar Dayal Vs. State of Rajasthan (1991(1) WLC (Raj) 686) it was observed by Division Bench in para 23 that this fact has come on record in the order of the Board in mutation proceedings, that the recorded khatedar died 50 years ago and it was contended that the property was leased out to one Nirajanlal, one of writ petitions therein and in the facts & circumstances, it was observed that if efforts would have been made to know as to who were owners of the property but the State Government failed to discharge its obligation and that being so, it was considered to be non-compliance of statutory provisions of law.
However, the Apex Court in State of Gujarat Vs. Panch of Nani Hamam’s Pole (AIR 1986 SC 803) observed that personal notice to each & every persons interested U/s 4(1) is not required to be served. Relevant observations read ad infra:
11. ….The relevant words in this Rule are: “Collector has under the provisions of section 4(1) issued notices to the parties interested;”. It is these words on the basis of which, in the impugned judgment, the High Court felt that a personal notice to the persons interested is mandatory provision and in absence of such a notice the proceedings of acquisition will be invalidated. In fact there are no words in this rule indicating a personal notice. What has been indicated is that the Collector has issued notice to the parties interested under provisions of section 4(1). Section 4(1) quoted above indicates the manner in which a notice will be given to the parties interested. And that is by getting a public notice having the substance of the notification given at a convenient place in the said locality. Therefore, what Rule 1 contemplates is a notice to the interested parties as required under section 4(1) and section 4(1) requires the notice to be notified at a convenient place in the said locality for information of the interested parties. It is, therefore, clear that by reading section 4(1) with Rule-1 it could not be interpreted to mean that a personal notice to each and every interested person is the requirement of section 4 and in absence of such a notice the proceedings of acquisition will be invalidated.
That apart, in the instant case, when legal heirs and Managing Trustee of the Trust (petitioner-1) indisputably had participated in acquisition proceedings, no prejudice has been caused and that being so, action of respondents State in initiating acquisition proceedings cannot be held to be bad in law.
Other questions were also raised by respondents that some of individual petitioners claiming themselves allottees of the Housing Co-operative Society have filed writ petitions but in absence of any title being transferred, they cannot be said to be persons aggrieved of acquisition impugned and in certain cases, transactions having taken place after initiation of acquisition proceedings and that are void ab initio by virtue of S.4 of Rajasthan Lands (Restrictions on Transfer) Act and that apart, few of writ petitions have been filed belatedly without reasonable explanation and much after the Award was passed by LAO but all these questions raised by respondents’ Counsel need not be answered since this Court has taken the view upholding the acquisition proceedings initiated by the respondents.
As regards alternative submission made on behalf of petitioners (allottees) seeking regularisation in the light of Circulars dt. 10/07/1999 & 26/05/2000, this court would like to record that they are always at liberty to make representations. If such representations are made, it is expected from the authority to examine & decide it in accordance with law.
Upshot of conclusions (supra) is that all writ petitions fail and are hereby dismissed. No costs.
(Ajay Rastogi), J.
K.Khatri/p.31/
385CW2002(9)Rsr14Oct.doc
