PETITIONER: RAJASTHAN HOUSING BOARD AND ORS. ETC. ETC. Vs. RESPONDENT: KISHAN AND ORS. ETC. ETC. DATE OF JUDGMENT27/01/1993 BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) KULDIP SINGH (J) CITATION: 1993 SCR (1) 269 1993 SCC (2) 84 JT 1993 (1) 298 1993 SCALE (1)183 ACT: Rajasthan Land Acquisition Act, 1953: Sections 5(A), 6, 17(1), 17(4)-Acquisition of land- Notification dispensing with the enquiry-Validity of notification-Large extent of land acquired-Existence of superstructures here and there-Whether prevents the Government from exercising its power to acquire the land. Land Acquisition Act, 1894: Section 48-De-acquisition of land-Communication of tentative decision-Effect of-Possession of land taken-Whether open to the Govt. to withdraw from the acquisition. HEADNOTE: Notification under Section 4(1) of the Rajasthan Land Acquisition Act 1953 was published in the Gazette for the acquisition of certain lands for the benefit of the Rajasthan Housing Board. Another notification was issued under S. 17(4) dispensing with the provisions of S. 5(A) of the Act. A declaration under S.6 of the Act was also issues in respect of that area. The validity of the aforesaid notifications was challenged before the High Court by way of writ petitions. The challenge made was mainly on the grounds that since the land acquired was not waste or arable land inasmuch as there were houses, huts, cattle sheds etc. on the land, the inquiry contemplated under S. 5(A) could not have been dispensed with; that there was no real urgency for dispensing with the Inquiry and that the houses and other structures on the land should not have been acquired. The Writ Petitions were dismissed by a Single Judge and Special Appeals were preferred to Division Bench. Since the two Judges In the Division Bench deferred in their opinions, the matter was referred to Third Judge. The Third Judge recorded his opinion on the questions, viz., whether it was necessary or obligatory for the Government to mention in the notification issued under S. 17(4) that the land proposed to be acquired was waste or arable and whether the non-mention thereof, vitiated the said notifica 270 tions; and if a small fraction of an arable land proposed to be acquired was occupied by buildings like buts kham houses and pucca houses for residential purposes and for keeping fodder, cattle farms, cattle sheds and for similar other purposes, was it still permissible to treat the entire land as arable land and Issue notification under s. 17(4) read with Section 17(1) of the Rajasthan Land Acquisition Act 1953, and the legal consequences thereof. Then the matter went back to the Division Bench which observed that the opinion of the Third Judge was not categorical on the last question. Therefore, the last question was referred to a Full Bench. By a majority view the Full Bench held that inasmuch as there were pucca and kutcha houses, cattle-sheds etc. on a fraction of a land proposed to be acquired and since the notification was not severable the entire notification under s. 17(4) failed. Accordingly, the Full Bench quashed the declaration under s. 6 of the Act. Against this the respondent Board preferred the present appeal. Contending that the matter stood concluded by the decision of this Court in State of U.P. v. Smt. Pista Devi, [1986] 4 SCC 251. The Writ Petition flied before this Court claimed that since the Petitioner Society also fulfilled the same public purpose served by the housing Board viz. housing, the Urban Development Minister had recommended that the land allotted to the petitioner. Society be denotified and de-acquired and to regularise the scheme of the Society, and that the Chief Minister has accepted the same. The Society thus contended that the proceedings were final and its lands could not be acquired. Allowing the appeals by the Housing Board and dismissing the Writ Petition flied by the Housing Society, this Court, HELD : 1. 'Mere was material before the government in this case upon which it could have and did form the requisite opinion that it was a case calling for exercise of power under Section 17(4) of the Rajasthan land Ceiling Act, 1953. The material placed before the Court disclosed that the government found, on due verification, that there was an acute scarcity of land and there was heavy pressure for construction of houses for weaker sections and middle income group people, that the Housing Board had obtained a loan of Rs.16 crores under a time-bound programme to construct and utilise the said amount by 31.3.1983; that in the circumstances the Government was satisfied that unless possession was taken immediately, and the Housing Board permitted to proceed with 271 the construction, the Board will not be able to adhere to the time-bound programme.There were also certain other materials upon which the government had formed the said satisfaction viz, that In view of the time-bound programme stipulated by the lendor, HUDCO, the Board and already appointed a large number of engineers and other subordinate staff for carrying out the said work and that holding an inquiry under Section 5-A would have resulted in uncalled for delay endangering the entire scheme and time-schedule of the Housing Board. The satisfaction under Section 17(4) of the Act Is a subjective one and that so long as there is material upon which the government could have formed the said satisfaction fairly, the court would not interfere nor would it examine the material as an appellate authority. This is the principle affirmed by decision of this Court not only under Section 17(4) but also generally with respect to subjective satisfaction. [279E-H, 280A-B] State of UP. v. Smt. Pista Devi, [1986] 4 S.C.C. 251, relied on. Sarju Prasad Saha v. The State of Uttar Pradesh, A.I.R. 1965 S.C. 1763 and Dora Phalauli v. State of Punjab and Ors., 4 [1979] 4 S.C.C. 485, distinguished. 2.1. The petitioner-cooperative society which claims to have purchased about 525 bighas of land from the khatedars represented to the Government to de-notify the land purchased by them. On the basis of the said representation, the then Minister in-charge of Urban Development took a decision to release the lands but he was over-ruled by the then Chief Minister. This issue lay dormant till 1990 till the general elections were announced. It is at this stage the petitioner-society made a representation to the Minister for Urban Development to de-notify the lands purchased by them. The Minister for Urban Development recommended de- notification which was approved by the Chief Minister. [281A-D] 2.2. 'Mere was no final decision at any time to de-notify the said lands. A tentative decision was no doubt taken in February, 1990 but before it could be implemented the government thought it necessary to ascertain the view of the Housing Board and to find out as to what the Board had done upon the land, what structures it had raised and what amount it had spent so that the Board could be compensated while delivering the possession back to the Housing society. Before this could be done there was a change In the Government and the said tentative decision 272 was reversed. In this view of the matter, it is not necessary to go into the question whether there was a communication of the 'decision' of the government to the petitioner. The communication must be of a final decision and not of a provisional or tentative decision. [285A-C] 2.3. In any event the government could not have withdrawn from the acquisition under Section 48 of the Act inasmuch as the Government had taken possession of the land. Once the possession of the land is taken it is not open to the government to withdraw from the acquisition. Admittedly possession was taken over by the Housing Board. (285D] 2.4. The notification under S.4 need not necessarily recite that the land proposed to be acquired is waste or arable. The non-recital does not vitiate the notification. [279C] 2.5. Where a large extent of land is acquired, the existence of a few superstructures here and there does not prevent the Govt. from exercising the power under S.17(4). [277B] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1418 of 1986.
From the Judgment and Order dated 6.1.86 of the Rajasthan
High Court in D.B. Special Appeal No. 301 of 1982.
WITH
C.A. Nos. 1419/86, 1420/86, 1846-47/86, 1848-49/86, 1850-
51/86, 185153/86, 1854-55/86, 2722-2738/92 & W.P. (C) No.
290/89, C.A. No. 185657/86 & C.P. No. 123 of 1991.
Soli J.Sorabjee, S.P. Singh, Surya Kant and B.D. Sharma for
the Appellants in C.A. No. 1418/86 etc.etc. and Respondent
in W.P. No. 290/89.
D.D. Thakur, M.L. Lahoty, Ms. Shipra Khazanchi, K.C. Gehani
and Prem Sunder Jha for the Petitioners in W.P. No. 290/89.
F.S. Nariman, S.P. Singh, Surya Kant and Aruneshwar Gupta
for the State of Rajasthan.
P.N. Misra, Sushil Kumar Jain and Ms. Pratibha Jain for the
Respondents.
273
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J. These appeals are preferred against
the judgment of the Full Bench of the Rajasthan High Court
allowing a batch of 16 special appeals. The special appeals
were preferred against the judgment of a learned Single
Judge dismissing a batch of 24 writ petitions. The result
of the judgment of the Full Bench is that the notification
issued by the Government of Rajasthan under Section 4(1) of
the Rajasthan Land Acquisition Act, 1953 proposing to
acquire a large extent of land stands quashed.
The notification under Section 4(1) of the Rajasthan Act,
published in the Rajasthan Gazette dated 13.1.1982, proposed
to acquire a total extent of 2,.517 bighas (approximately
equal to 1,580 crores) for the benefit of the Rajasthan
Housing Board. On 9.2.1982, another notification was issued
under Section 17(4) of the said Act dispensing with the
provisions of Section 5(A). On the same day, a declaration
under Section 6 was also issued in respect of the said area.
According to the Government, the possession of the land was
also taken on 22nd and 24th of May, 1982. The validity of
the said notifications was questioned in the batch of writ
petitions (being S.B. Civil Writ Petition No. 707 of 1982
etc.) on three grounds viz., (i) that the land acquired was
not a waste or arable land inasmuch as there were pucca and
kutchha houses, huts and cattle sheds etc. On the said
land. If so, the power under sub-section (1) and sub-sec-
tion (4) of Section 17 could not have been invoked to
dispense with the enquiry under Section 5(A); (ii) that
there was no real urgency warranting the invocation of
urgency clause. An inquiry under Section 5(A) ought to have
been held, which is a valuable right given to the land-
owners whose land is acquired under the Act; and (iii) that
at any rate the houses and other structures on the land
acquired should not have been acquired.
The learned Judge rejected all the three contentions and
dismissed the writ petitions. Special appeals were
preferred against the same which were heard by a Division
Bench in the first instance. The two learned Judges, N.M.
Kasliwal and K.S. Siddhu, JJ. differed in their opinions.
Accordingly, the matter was referred to a third Judge by an
order dated 12.12.1983. Three questions were framed for the
consideration of third Judge viz., (1) whether it was
necessary for the Government to mention in the notification
that the land is waste or arable and whether the non-men-
274
tion of the said fact vitiates the notification; (2) whether
it was obligatory upon the Government to mention in the
notification issued under Section 17(4) that the land
proposed to be acquired is waste or arable and whether the
non-mention thereof vitiates the said notification; and (3)
“if a small fraction of an arable land proposed to be
acquired is occupied by buildings like huts, kham houses and
pucca houses for residential purposes and for keeping
fodder, cattle farms, cattle sheds and for similar other
purposes, is it still permissible to treat the entire land
as arable land and issue notification under Section 17(4)
read with Section 17(1) of the Rajasthan Land Acquisition
Act, 1953? If not, what are the legal consequences which
such buildings aforementioned entail in the context of the
said notification?’
The third Judge recorded his opinion on the said questions
but when the matter went back to the Division Bench, it was
of the opinion that while the opinion of the learned third
Judge on questions 1 and 2 was categorical, affirming the
view of the learned Single Judge, his opinion on question
No.3 was not clear or categorical. Accordingly, the said
question No.3 was referred to a Full Bench. The Full Bench
comprising N.M. Kasliwal, M.B. Sharma and Farooq Hasan, JJ.
heard the parties and held by a majority (Sharma and Farooq
Hasan, JJ.) that inasmuch as there were pucca and kutchha
houses, cattle sheds etc. on a fraction of a land proposed
to be acquired and also because the notification is not
severable, the entire notification under Section 17(4) is
liable to fail. Accordingly, the declaration under Section
6 was also quashed. The minority view was expressed by
Kasliwal J. He was of the opinion that merely because on a
small portion of the land proposed to be acquired there were
pucca and kutchha houses, the invocation of power under
Section 17(4) read with Section 17(1) of the Act was not
bad. The opinion of the majority Judges is questioned in
these appeals before us.
Sri Soli Sorabji, learned counsel for the appellant (State
of Rajasthan) submitted that the question considered by the
Fun Bench of the High Court is since concluded by a decision
of this court in State of U.P. v. Smt. Pista Devi, [1986] 4
S.C.C. 251 and, therefore, the appeals must be allowed
straightaway. On the other hand, S/Sri D.D. Thakur and S.K.
Jain, learned counsel for the respondent-writ petitioners
submitted on the basis of the decision in Sarju Prasad Saha
v. The State of Uttar Pardesh, A.I.R. 1965 S.C. 1763 that
once it is found that a portion of a land proposed to be
275
acquired is not waste or arable, the entire notification
should fail inasmuch as the notification is not severable.
They also submitted that the decision in Dom Phalauli v.
State of Punjab and Ors., [1979] 4 S.C.C. 485 supports their
contention that the notification under Section 17(4) read
with Section 17(1) should itself expressly recite that the
land in respect of which the said power is being invoked is
a waste or arable land and that non-recital of the said fact
vitiates the notification. The learned counsel also sought
to argue that there was no such urgency as to call for
dispensing with the inquiry under Section 5(A). They
submitted that when a large chunk of land comprising four
villages was being acquired it was but fair and just that an
inquiry under Section 5(A) was held The construction of
houses by Housing Board, it was submitted, was not so urgent
as to brook no delay and, therefore, the invocation of
urgency was not called for.
So far as the main question which was considered by the Fun
Bench is concerned,it is necessary to refer to the factual
finding in the first instance. Although the writ
petitioners contended that there were pucca houses, kham
houses and huts used for residential purposes and also
cattle sheds, cattle-ponds and other structures, no clear
material was placed before the court. With the result that
the Full Bench proceeded on the basis that these structures
were stituated only upon a fraction of a land sought to be
acquired. We may quote the following observation from the
judgment of Sharma, J. (majority opinion):
“From the pleadings of the parties, it can
also no longer be disputed that in the case of
some of the appellants on fraction of this
land kuchcha houses, kham houses and even some
pucca constructions are situated which are
being used by the appellants for tethering
their cattle, storage of fodder and grain and
also for residential purposes. It cannot be
said as to out of the large area of 2570.15
bighas on what portion such constructions have
been made, but in case of the appellants in
each case they could be only on a fraction of
the entire land sought to be acquired.
(emphasis added)
The question is, whether in such a situation the majority
Judges of the Full Bench were right in holding that the
notification under Section 17(4) should fail.
276
In State of U.P. v. Smt. Pista Devi, a bench comprising
E.S. Venkataramiah and Khalid, JJ. considered an identical
question. That case arose from Uttar Pradesh where by way
of a State amendment sub-section 1(A) was introduced in
Section 17. Paragraph 7 of the judgment brings out the
ratio of the judgment besides quoting the said State
Amendment. It reads:
“It was next contended that in the large
extent of land Acquired which has about 412
acres there were some buildings here and there
and so the acquisition of those parts of the
land on which buildings were situated was
unjustified since those portions were not
either waste or arable lands which could be
dealt with under Section 17(1) of the Act.
This contention has not been considered by the
High Court. We do not, however, find any
substance in it. The government was not
acquiring any property which was substantially
covered by buildings. It acquired about 412
acres of land in the outskirts of Meerut city
which was described as arable land by the
Collector. It may be true that here and there
were a few super-structures. In a case of
this nature where a large extent of land is
being acquired for planned development of the
urban area it would not be proper to leave the
small portions over which some super-
structures have been constructed out of the
development scheme. In such a situation where
there is real urgency it would be difficult to
apply Section 5-A of the Act in the case of
few bits of land on which some structures are
standing and to exempt the rest of the
property from its application. Whether the
land in question is waste or arable land has
to be judged by looking at the general nature
and condition of the land. It is not
necessary in this case to consider any further
legality or the propriety of the application
of Section 17(1) of the Act to such portions
of land proposed to be acquired, on which
super-structures were standing because of the
special provision which is inserted as sub-
section (1-A) of Section 17 of the Act by the
Land Acquisition (U.P. Amendment Act) (22 of
1954) which reads thus:
(1-A) The power to take possession under sub-
section (1) may also be exercised in the case
of land other than waste or arable land, where
the land is acquired for or in connection with
277
sanitary improvements of any kind or planned
development.”
We are of the opinion that the principle enunciated in the
said paragraph is the correct one and that the said
principle is not really based upon sub-section (1-A) of
Section 17 introduced by U.P. State Amendment. Having
expressed a definite opinion that existence of a few super-
structures here and there, where a large extent of land is
being acquired, does not prevent the government from
exercising the power under Section 17(4), the learned Judge
evolved the following test: “whether the land in question is
waste or arable has to be judged by looking at the general
nature and condition of the land.’ Having so held, the
learned Judges referred to the U.P. State Amendment by way
of an additional supporting ground. We are of the opinion
that even apart from the said State amendment, the principle
enunciated in the said decision is the correct one and is
fully applicable here. Mr. Sorabji is, therefore, right in
contending that the said decision concludes the said issue
in these appeals.
The learned counsel for the respondents, however, submitted
on the basis of the decision in Sarju Prasad Saha v. The
State of U.P. & Ors., A.I.R. 1965 S.C. 1763 that in such a
situation the notification being not severable, the entire
notification should fail. We cannot agree. That was a
converse case in the sense that a major part of the land
proposed to be acquired was covered by buildings and
constructions whereas only smaller part was waste or arable.
It is in such a case that the court opined that the
notification cannot be held to be partially good and
partially bad. Accordingly, it was held, dispensing with
enquiry under Section 5(A) by invoking the urgency clause in
Section 17(4) was bad. Paragraph (9) relied upon by the
learned counsel may now be set out. It reads:
“One other point raised at the Bar may be
briefly referred to. It was contended by Mr.
S.P. Sinha appearing on behalf of the
Municipal Board, Basti, that a part of the
land notified for acquisition was waste or
arable and in support of his contention,
counsel referred us to certain revenue record.
But if only a part of the land is waste or
arable and the rest is not, a notification
under S. 17(4) dispensing with compliance with
the requirements of S. 5-A would be invalid.
It would not be open to the Court to regard
the notification as partially good and
partially bad, for if the State had no power
to dispense with the inquiry in respect of any
part of the land notified under
278
S.4(1), an inquiry must be held under S.5-A
giving an opportunity to persons interested in
the land notified to raise their objections to
the proposed acquisition and in that inquiry
the persons interested cannot be restricted to
raising objections in respect of land other
than waste or arable land.”
We don not think that in a case where only a fraction of a
large extent of land sought to be acquired is not waste or
arable, the observations made in the said judgment are
applicable.
The counsel for the respondents then relied upon Dora
Phalauli v. State of Punjab & Ors., [1979] 4 S.C.C. 485 in
support of their contention that the notification under
Section 17(4) should necessarily recite that the land
concerned is waste or arable land and that absence of such
recital renders the. notification invalid. The observations
relied upon in the judgment of N.L. Untwalia and A.P. Sen,
JJ. read thus:
“It is to be clearly understood that under
sub-section (4), the appropriate Government
may direct that the provisions of Section 5-A
shall not apply where in the opinion of the
State Government, the provisions of sub-
section (1) or sub-section (2) are applicable,
otherwise not. For making the provisions of
sub-section (1) applicable, two things must be
satisfied, firstly that the land in respect of
which the urgency provision is being applied
is waste or arable and secondly, that there is
an urgency to proceed in the matter of taking
immediate possession and so the right of the
owner of the land for filing an objection
under Section 5-A should not be made available
to him. In the portion of the notification
which we have extracted above, it is neither
mentioned that the land is waste or arable nor
has it been stated that in the opinion of the
Government, there was any urgency to take
recourse to the provisions of Section 17 of
the Act. A direction to the Collector has
been given to take action under Section 17 on
the ground of urgency but this is not a legal
and complete fulfillment of the requirement of
the law. It is to be remembered that the
right of a person having any interest in the
property to file an objection under Section 5-
A of the Act should not be interfered with in
such a casual or cavalier manner as has been
done in this case.”
279
The learned Judges observed that the notification neither
mentions that the land is waste or arable nor does it
mention that in the opinion of the government there was
urgency to take recourse to the provision of Section 17.
The decision is not really based upon the ground that the
notification fails to recite that the land is waste or
arable. The paragraph read as a whole shows that the
learned Judges were impressed more by the fact that the
notification does not state that the government is of the
opinion that it was a case where the inquiry under Section
5-A ought to be dispensed with under Section 17(4). It is
in that context that they also pointed out that the
notification does not recite that the land is waste or
arable. Section 17(4) does not require that notification
itself should recite the fact that the land concerned is
waste or arable. In such a situation there is no basis for
the respondent’s contention that the notification should
itself recite the said fact nor does the said decision
support their contention.
Sri Thakur further argued that the construction of houses
by Housing Board is not of such urgency as to call for the
invocation of the said power. We are not satisfied.
Firstly, on this question the decision of the Rajasthan High
Court is against the writ petitioners. The learned Single
Judge negatived it as well as Division Bench following the
opinion of the third Judge. Secondly, we are satisfied that
there was material before the government in this case upon
which it could have and did form the requisite opinion that
it was a case calling for exercise of power under Section
17(4). The learned Single Judge has referred to the
material upon which the government had formed the said
opinion. The material placed before the Court disclosed
that the government found, on due verification, that there
was an acute scarcity of land and there was heavy pressure
for construction of houses for weaker sections and middle
income group people; that the Housing Board had obtained a
loan of Rs. 16 crores under a time-bound programme to
construct and utilise the said amount by 31.3.1983; that in
the circumstances the Government was satisfied that unless
possession was taken immediately, and the Housing Board
permitted to proceed with the construction, the Board will
not be able to adhere to the time-bound programme. In
addition to the said fact, the Division Bench referred to
certain other material also upon which the government had
formed the said satisfaction viz., that in view of the time-
bound programme stipulated by the lender, HUDCO, the Board
had already appointed a large number of engineers and other
subordinate staff for carrying out the said work and that
holding an inquiry under Section 5-A would have resulted in
uncalled
280
for delay endangering the entire scheme and time-schedule of
the Housing Board. It must be remembered that the
satisfaction under Section 17(4) is a subjective one and
that so long as there is material upon which the government
could have formed the said satisfaction fairly, the court
would not interfere nor would it examine the material as an
appellate authority. This is the principle affirmed by
decisions of this court not only under Section 17(4) but
also generally with respect to subjective satisfaction.
For the above reasons, the appeals are allowed and the
judgment of the Full Bench of the Rajasthan High Court
impugned herein as set aside. Having regard to the facts
and circumstances of the case, we direct the parties to bear
their own costs.
WITH PETITION (C) NO. 290 OF 1989
This writ petition is preferred by the New Pink Grih
Nirman Sahkari Sangh questioning the very same notification
which were questioned in the writ petitions filed in
Rajasthan High Court and which have given rise to the
aforementioned Civil Appeals. It was admitted because of
the pendency of the above appeals and was directed to be
heard alongwith them. In the writ petition, several reliefs
are asked for viz., quashing of the notification under
Section 4(1), quashing of the notification under Section
17(1), quashing of the notification under section 17(4) as
well as the declaration under Section 6. It is prayed that
the acquisition proceedings must be declared to have been
withdrawn by virtue of the order of the Hon’ble Housing
Minister of Rajasthan dated 20th July, 1984.
Before us, however, Sri D.D. Thakur, learned counsel for
the petitioner urged only one contention viz., that by
virtue of the decision of the Minister in-charge of Urban
Development, Government of Rajasthan and the Chief Minister
dated 8.2.1990 the Rajasthan Government must be held to have
withdrawn from the said acquisition proceedings within the
meaning of Section 48 of the Land Acquisition Act, 1894 in
so far as the lands purchased by the petitioner-society are
concerned. For a proper appreciation of this contention, it
is necessary to notice the relevant facts and circumstances
in their sequence.
The notification under section 4(1) was published on
12.1.1982. On 9.2.1982, the notification under section 17(4)
and the declaration under section 6 were issued. According
to the government, possession was also
281
taken of the entire extent of land on 22nd and 24th of May,
1982.
The petitioner-cooperative society which claims to have
purchased about 525 bighas of land from the khatedars
represented to the Government to de-notify the land
purchased by them. On the basis of the said representation,
the then Minister in-charge of Urban Development took a
decision on 20.7.1984 to release the lands but he was over-
ruled by the then Chief Minister Sri Harideo Joshi on
29.4.1985. The decision of the Chief Minister has also been
placed before us. This issue lay dormant till 1990. On
27.1.1990, general elections were announced. Polling was to
take place on 27.2.1990. It is at this stage that a sudden
urgency appears to have developed in this matter again. The
petitioner-society made a representation on 6.2.1990 to the
Minister for Urban Development to de-notify the lands
purchased by them. The Minister for Urban Development
recommended de-notification which was approved by the Chief
Minister Sri Harideo Joshi on 8.2.1990. It was signed by the
Minister concerned on 13.2.1990.
The recommendation put up by the Urban Development Minister
for the consideration of the Chief Minister stated the
following facts: The petitioner-society had entered into
agreements of sale in 1974-75 and 1975-76 for purchasing a
substantial extent of land for developing the Indira Bihar
Residential Scheme and had also allotted plots to its three
thousand members during the years 1976 to 1981. The society
had deposited Rs. 50,000 as sub-division charges according
to rules in the year 1981 with the Urban Improvement Trust
and had initiated proceedings for technical approval of the
scheme in the same year. The society had also deposited a
sum of Rs. 9 lakhs towards conversion of the land (from
agricultural to urban land) in the office of the Additional
Collector, Land Conversion in March, 1982 under the Land
Conversion Rules, 1981. The Housing Board had actually
started the proceedings for acquisition and the acquisition
notifications were issued in January, 1982 i.e., after the
society had taken the above steps. The petitioner-society
had obtained a stay order against the acquisition proceed-
ings and that as in 1990, the stay granted by the Supreme
Court was in force. On 18.1.1990, the State Government had
taken a policy decision to regularise and de-acquire the
lands under acquisition covered by schemes of the Housing
Cooperative Societies on payment of prescribed amount. The
said policy may be applied to the petitioner-society. As
far as the question of exemption
282
from urban land ceiling is concerned, all the plot holders
of this society, like other societies, will hand over their
plots to the Jaipur Land Authority and it shall be deemed to
be the government land but will be re-allotted to the same
plot holders after charging the fixed price and development
charges on prescribed terms. This procedure is being
followed by Jaipur Development Authority in other matters as
well. In this way, the problem of exemption from the urban
land ceiling would also be solved. The final recommendation
was: ‘looking to the aforesaid facts it is desirable to
direct to de-acquire that land of the scheme under the
provisions of section 48 of the Land Acquisition Act, 1894
and regularise the scheme because this society is fulfilling
the same public purpose of housing by starting proceedings
for which the Housing Board wants to acquire this land later
on for this purpose.”
The above recommendation was accepted by the Chief Minister
on 8.2.1990 as stated hereinbefore. It appears that the
matter again came before the Hon’ble Chief Minister on
23.2.1990 when he approved a note, the latter half of which
reads as follows: “Therefore, it will be in the interest of
broad public interest that this land of the society be
regularised according to the decision of Cabinet after
releasing it from acquisition, as is the opinion of
Honourable Minister Incharge Local Self Govt, and Housing
Minister. As far as the question of Scheduled Caste/Tribes
land is concerned, in this respect the Government has
already taken a decision much before, according to which the
proceedings are to be taken.” Evidently, in pursuance of the
aforesaid decision, the Deputy Secretary, Urban Development
and Housing Department, Government of Rajasthan, Jaipur ad-
dressed the following letter to the secretary, Rajasthan
Housing Board, Jaipur:
“RAJASTHAN GOVERNMENT
URBAN DEVELOPMENT AND HOUSING DEPARTMENT
No. F. 5(3) UDH/92 DATED 24.4.90.
Secretary,
Rajasthan Housing Board,
Jaipur.
Sub:- In the matter of De-acquisition of land of Indira
Bihar Scheme Sahkari Samiti situated in village Devri,
Sukhalpura, Jhalana Chaur, and Goliyabas.
283
Sir,
In respect of the above subject it has been
directed by the State Govt. that a decision to
release the aforesaid land of the Society from
acquisition has been taken. It has been
brought to the notice of the State Government
that some improvement has been done by you on
the land covered by this scheme. Therefore,
kindly intimate as to what development works
have been performed by you on the land covered
by the aforesaid scheme of the society and how
much expenditure has been incurred by the
Housing Board in it. Please send the full
particulars to the State Govt. immediately
also inform as to at what stage the matter is
going in the courts without delay. Now so far
as possible do not make any development works
further on this land. Intimate as to whether
possession of the land has been taken or not.
Before restoring the possession to the society
the amount of development charges will have to
be returned back, therefore, send the
valuation within three days. Conversion
charges will be payable according to the
rules. The copies of the orders of the court
may also be sent.
Yours faithfully,
sd/
Dy. Secretary.’
A copy of the said letter was also marked to the petitioner
society as would be evident from the endorsement at the foot
of the said letter which reads:
“No. F. 5(3) UDB/90 Dated: 29.2.90
Copy to the secretary, New Pink City Grah Nirman Sahkari
Samiti Ltd., Bapu Bazar, Jaipur for information. He may
kindly intimate as to within what period of time the amount
of Development charges and cost of land etc. will be
deposited.
sd/
Dy. Secretary to the Govt.
28.2.90″
284
The learned counsel for the writ petitioners stops here and
says that the above proceedings constitute a definite and
final decision to de-notify and de-acquire the lands and
that nothing more was required to be done to constitute
withdrawal from acquisition within the meaning of section
48.
Sri F.S. Nariman, the learned counsel appearing for the
government of Rajasthan, however, filed an additional
affidavit setting out the developments subsequent to the
aforesaid letter dated 24.2.1990 which may now be noticed.
The additional affidavit is sworn to by the Secretary,
Rajasthan Housing Board, Sri M.K.Khanna. It is stated that
in response to the aforesaid letter dated 24.2.1990, the
Rajasthan Housing Board represented to the Government that
the land should not be de-notified whereupon the Secretary,
urban Development and Housing ordered the stopping of the
issuance of notification for de-acquisition of the land of
the petitioner society on 25.5.1990. (Meanwhile, a new
Government represented by a different political party had
come into power). The order of the secretary dated
25.5.1990 is filed as Ann. X-1 to the additional affidavit.
It is further submitted that at no time any notification was
issued withdrawing from the acquisition. It is further
stated that on 13.12.1990 the then Chief Minister referred
the entire matter pertaining to de-acquisition of
petitioner’s land to the Beri Commission for report. The
said commission was constituted to look into illegalities
and irregularities committed by the functionaries and
officials of the previous government. The Beri Commission
reported that the decision to de-acquire the lands of the
petitioner-society was in contravention of the earlier
decision of the Cabinet, contrary to law and against public
interest. The commission stated that the said decision was
the result of the influence brought upon the concerned
Minister by the petitioner- society and is not a fair
decision. The Chief Minister also acted under the influence
and pressure of the petitioner-society and, therefore, his
decision too is not a proper one. Accepting the said
report, the government intimated the Rajasthan Housing Board
that there is no question of de-acquiring the said land.
The letter dated 24.4.1990 was also formally withdrawn on
31.10.1991. It is also stated in the said additional
affidavit that the Khatedars from whom the society claimed
to have purchased the said land under agreements of sale,
have by separate letters intimated the Secretary, Rajasthan
Housing Board and the Land Acquisition Collector as far back
as 5th April, 1982 that they had no objection to the
acquisition of their lands. They asked for compensation @
Rs. 40,000/ per bigha.
285
From the above material it is clear that there was no final
decision at any time to de-notify the said lands. A
tentative decision was no doubt taken in February, 1990 but
before it could be implemented the government thought it
necessary to ascertain the views of the Housing Board and to
find out as to what the Board had done upon the land, what
structures it had raised and what amount it had spent so
that the Board could be compensated while delivering the
possession back to the Housing society. Before this could
be done there was a change in the government and the said
tentative decision was reversed. In this view of the
matter, it is not necessary for us to go into the question
whether there was a communication of the ‘decision’ of the
government to the petitioner. The communication must be of
a final decision and not of a provisional or tentative
decision.
We are of the further opinion that in any event the
government could not have withdrawn from the acquisition
under section 48 of the Act inasmuch as the Government had
taken possession of the land. Once the possession of the
land is taken it is not open to the government to withdraw
from the acquisition. The very letter dated 24.2.1990
relied upon by the counsel for the petitioner recites that
‘before restoring the possession to the society the amount
of development charges will have to be returned
back…………. This shows clearly that possession was
taken over by the Housing Board. Indeed the very tenor of
the letter is, asking the Housing Board as to what
development work they had carried out on the land and how
much expenditure they had incurred thereon, which could not
have been done unless the Board was in possession of the
land. The Housing Board was asked to send the full
particulars of the expenditure and not to carry on any
further development works on that land. Reading the letter
as a whole, it cannot but be said that the possession of the
land was taken by the government and was also delivered to
the Housing Board. Since the possession of the land was
taken, there could be no question of withdrawing from the
acquisition under section 48 of the Land Acquisition Act,
1894.
For the above reasons, the writ petition fails and is
dismissed with costs.
G.N. Appeals allowed.
Petition dismissed.
286
