{"id":28372,"date":"1993-01-27T00:00:00","date_gmt":"1993-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajasthan-housing-board-and-ors-vs-kishan-and-ors-etc-etc-on-27-january-1993"},"modified":"2015-02-23T15:09:05","modified_gmt":"2015-02-23T09:39:05","slug":"rajasthan-housing-board-and-ors-vs-kishan-and-ors-etc-etc-on-27-january-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajasthan-housing-board-and-ors-vs-kishan-and-ors-etc-etc-on-27-january-1993","title":{"rendered":"Rajasthan Housing Board And Ors. … vs Kishan And Ors. Etc. Etc on 27 January, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rajasthan Housing Board And Ors. … vs Kishan And Ors. Etc. Etc on 27 January, 1993<\/div>\n
Equivalent citations: 1993 SCR (1) 269, \t 1993 SCC (2)\t 84<\/div>\n
Author: B Jeevan Reddy<\/div>\n
Bench: Jeevan Reddy, B.P. (J)<\/div>\n
           PETITIONER:\nRAJASTHAN HOUSING BOARD AND ORS.  ETC.\tETC.\n\n\tVs.\n\nRESPONDENT:\nKISHAN AND ORS.\t ETC.  ETC.\n\nDATE OF JUDGMENT27\/01\/1993\n\nBENCH:\nJEEVAN REDDY, B.P. (J)\nBENCH:\nJEEVAN REDDY, B.P. (J)\nKULDIP SINGH (J)\n\nCITATION:\n 1993 SCR  (1) 269\t  1993 SCC  (2)\t 84\n JT 1993 (1)   298\t  1993 SCALE  (1)183\n\n\nACT:\nRajasthan Land Acquisition Act, 1953:\nSections   5(A),  6,  17(1),  17(4)-Acquisition\t  of   land-\nNotification   dispensing  with\t the   enquiry-Validity\t  of\nnotification-Large  extent  of\tland  acquired-Existence  of\nsuperstructures\t  here\t and  there-Whether   prevents\t the\nGovernment     from  exercising\t its power  to\tacquire\t the\nland.\nLand Acquisition Act, 1894:\nSection 48-De-acquisition of land-Communication of tentative\ndecision-Effect of-Possession of land taken-Whether open  to\nthe Govt. to withdraw from the acquisition.\n\n\n\nHEADNOTE:\nNotification  under  Section  4(1)  of\tthe  Rajasthan\tLand\nAcquisition  Act 1953 was published in the Gazette  for\t the\nacquisition  of\t certain  lands\t for  the  benefit  of\t the\nRajasthan  Housing Board.  Another notification\t was  issued\nunder S. 17(4) dispensing with the provisions of S. 5(A)  of\nthe Act.  A declaration under S.6 of the Act was also issues\nin  respect  of that area.  The validity  of  the  aforesaid\nnotifications was challenged before the High Court by way of\nwrit  petitions.   The\tchallenge made\twas  mainly  on\t the\ngrounds that since the land acquired was not waste or arable\nland inasmuch as there were houses, huts, cattle sheds\tetc.\non  the land, the inquiry contemplated under S.\t 5(A)  could\nnot have been dispensed with; that there was no real urgency\nfor  dispensing\t with the Inquiry and that  the\t houses\t and\nother structures on the land should not have been  acquired.\nThe  Writ  Petitions were dismissed by a  Single  Judge\t and\nSpecial Appeals were preferred to Division Bench.  Since the\ntwo Judges In the Division Bench deferred in their opinions,\nthe  matter  was referred to Third Judge.  The\tThird  Judge\nrecorded his opinion on the questions, viz., whether it\t was\nnecessary or obligatory for the Government to mention in the\nnotification issued under S. 17(4) that the land proposed to\nbe acquired was waste or arable and whether the\t non-mention\nthereof, vitiated the said notifica\n270\ntions; and if a small fraction of an arable land proposed to\nbe acquired was occupied by buildings like buts kham  houses\nand  pucca houses for residential purposes and\tfor  keeping\nfodder,\t cattle\t farms, cattle sheds and for  similar  other\npurposes, was it still permissible to treat the entire\tland\nas  arable land and Issue notification under s.\t 17(4)\tread\nwith  Section  17(1) of the Rajasthan Land  Acquisition\t Act\n1953,  and the legal consequences thereof.  Then the  matter\nwent  back  to the Division Bench which\t observed  that\t the\nopinion\t of the Third Judge was not categorical on the\tlast\nquestion.   Therefore, the last question was referred  to  a\nFull  Bench.   By a majority view the Full Bench  held\tthat\ninasmuch as there were pucca and kutcha houses, cattle-sheds\netc.  on  a fraction of a land proposed to be  acquired\t and\nsince\tthe  notification  was\tnot  severable\tthe   entire\nnotification  under s. 17(4) failed.  Accordingly, the\tFull\nBench  quashed\tthe  declaration  under s.  6  of  the\tAct.\nAgainst\t this  the respondent Board  preferred\tthe  present\nappeal.\t  Contending that the matter stood concluded by\t the\ndecision of this Court in State of U.P. v. Smt.\t Pista Devi,<\/a>\n[1986] 4 SCC 251.\nThe Writ Petition flied before this Court claimed that since\nthe  Petitioner\t Society  also\tfulfilled  the\tsame  public\npurpose served by the housing Board viz. housing, the  Urban\nDevelopment Minister had recommended that the land  allotted\nto  the petitioner.  Society be denotified  and\t de-acquired\nand  to regularise the scheme of the Society, and  that\t the\nChief  Minister\t has accepted the same.\t  The  Society\tthus\ncontended  that\t the proceedings were final  and  its  lands\ncould not be acquired.\nAllowing the appeals by the Housing Board and dismissing the\nWrit Petition flied by the Housing Society, this Court,\nHELD  : 1. 'Mere was material before the government in\tthis\ncase  upon  which it could have and did form  the  requisite\nopinion\t that  it was a case calling for exercise  of  power\nunder Section 17(4) of the Rajasthan land Ceiling Act, 1953.\nThe  material  placed before the Court\tdisclosed  that\t the\ngovernment  found,  on due verification, that there  was  an\nacute  scarcity\t of land and there was\theavy  pressure\t for\nconstruction of houses for weaker sections and middle income\ngroup people, that the Housing Board had obtained a loan  of\nRs.16 crores under a time-bound\t programme to construct\t and\nutilise\t  the  said  amount  by\t 31.3.1983;  that   in\t the\ncircumstances  the  Government\twas  satisfied\tthat  unless\npossession  was\t taken immediately, and\t the  Housing  Board\npermitted to proceed with\n271\nthe  construction, the Board will not be able to  adhere  to\nthe  time-bound\t programme.There  were\talso  certain  other\nmaterials  upon\t which the government had  formed  the\tsaid\nsatisfaction  viz, that In view of the time-bound  programme\nstipulated  by\tthe  lendor, HUDCO, the\t Board\tand  already\nappointed a large number of engineers and other\t subordinate\nstaff  for  carrying out the said work and that\t holding  an\ninquiry\t under Section 5-A would have resulted\tin  uncalled\nfor delay endangering the entire scheme and time-schedule of\nthe Housing Board.  The satisfaction under Section 17(4)  of\nthe  Act  Is a subjective one and that so long as  there  is\nmaterial  upon\twhich the government could have\t formed\t the\nsaid satisfaction fairly, the court would not interfere\t nor\nwould  it  examine the material as an  appellate  authority.\nThis is the principle affirmed by decision of this Court not\nonly under Section 17(4) but also generally with respect  to\nsubjective satisfaction. [279E-H, 280A-B]\nState  of  UP.\tv. Smt.\t Pista Devi, [1986]  4\tS.C.C.\t251,\nrelied on.\nSarju Prasad Saha v. The State of Uttar Pradesh, A.I.R. 1965\nS.C.  1763 and Dora Phalauli v. State of Punjab and Ors.,<\/a>  4\n[1979] 4 S.C.C. 485, distinguished.\n2.1. The petitioner-cooperative society which claims to have\npurchased  about  525  bighas of  land\tfrom  the  khatedars\nrepresented   to  the  Government  to  de-notify  the\tland\npurchased by them.  On the basis of the said representation,\nthe  then  Minister in-charge of Urban\tDevelopment  took  a\ndecision  to release the lands but he was over-ruled by\t the\nthen Chief Minister.  This issue lay dormant till 1990\ttill\nthe  general elections were announced.\tIt is at this  stage\nthe petitioner-society made a representation to the Minister\nfor  Urban Development to de-notify the lands  purchased  by\nthem.\tThe Minister for Urban Development  recommended\t de-\nnotification  which  was  approved by  the  Chief  Minister.\n[281A-D]\n2.2. 'Mere  was no final decision at any time  to  de-notify\nthe said lands.\t A tentative decision was no doubt taken  in\nFebruary,  1990\t but  before it\t could\tbe  implemented\t the\ngovernment thought it necessary to ascertain the view of the\nHousing Board and to find out as to what the Board had\tdone\nupon the land, what structures it had raised and what amount\nit  had spent so that the Board could be  compensated  while\ndelivering  the\t possession  back to  the  Housing  society.\nBefore\tthis  could  be\t done there  was  a  change  In\t the\nGovernment and the said tentative decision\n272\nwas  reversed.\t In  this  view of the\tmatter,\t it  is\t not\nnecessary  to  go  into the question  whether  there  was  a\ncommunication  of  the 'decision' of the government  to\t the\npetitioner.   The communication must be of a final  decision\nand not of a provisional or tentative decision. [285A-C]\n2.3. In\t any event the government could not  have  withdrawn\nfrom the acquisition under Section 48 of the Act inasmuch as\nthe  Government had taken possession of the land.  Once\t the\npossession  of\tthe  land is taken it is  not  open  to\t the\ngovernment  to\twithdraw from the  acquisition.\t  Admittedly\npossession was taken over by the Housing Board. (285D]\n2.4. The notification under S.4 need not necessarily  recite\nthat  the land proposed to be acquired is waste\t or  arable.\nThe non-recital does not vitiate the notification. [279C]\n2.5. Where a large extent of land is acquired, the existence\nof a few superstructures here and there does not prevent the\nGovt. from exercising the power under S.17(4). [277B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1418 of 1986.
\nFrom  the Judgment and Order dated 6.1.86 of  the  Rajasthan
\nHigh Court in D.B. Special Appeal No. 301 of 1982.\n<\/p>\n
\t\t\t    WITH
\nC.A.  Nos. 1419\/86, 1420\/86, 1846-47\/86,  1848-49\/86,  1850-
\n51\/86,\t185153\/86, 1854-55\/86, 2722-2738\/92 & W.P.  (C)\t No.
\n290\/89, C.A. No. 185657\/86 & C.P. No. 123 of 1991.
\nSoli J.Sorabjee, S.P. Singh, Surya Kant and B.D. Sharma\t for
\nthe  Appellants in C.A. No. 1418\/86 etc.etc. and  Respondent
\nin W.P. No. 290\/89.\n<\/p>\n
D.D. Thakur, M.L. Lahoty, Ms. Shipra Khazanchi, K.C.  Gehani
\nand Prem Sunder Jha for the Petitioners in W.P. No. 290\/89.
\nF.S.  Nariman, S.P. Singh, Surya Kant and  Aruneshwar  Gupta
\nfor the State of Rajasthan.\n<\/p>\n
P.N. Misra, Sushil Kumar Jain and Ms. Pratibha Jain for\t the
\nRespondents.\n<\/p>\n
273<\/span><\/p>\n
The Judgment of the Court was delivered by
\nB.P.  JEEVAN REDDY, J. These appeals are  preferred  against
\nthe  judgment of the Full Bench of the Rajasthan High  Court
\nallowing a batch of 16 special appeals.\t The special appeals
\nwere  preferred\t against the judgment of  a  learned  Single
\nJudge  dismissing a batch of 24 writ petitions.\t The  result
\nof the judgment of the Full Bench is that the  notification
\nissued by the Government of Rajasthan under Section 4(1)  of
\nthe  Rajasthan\tLand  Acquisition  Act,\t 1953  proposing  to
\nacquire a large extent of land stands quashed.
\nThe  notification under Section 4(1) of the  Rajasthan\tAct,
\npublished in the Rajasthan Gazette dated 13.1.1982, proposed
\nto  acquire a total extent of 2,.517  bighas  (approximately
\nequal  to  1,580 crores) for the benefit  of  the  Rajasthan
\nHousing Board.\tOn 9.2.1982, another notification was issued
\nunder  Section\t17(4) of the said Act  dispensing  with\t the
\nprovisions of Section 5(A).  On the same day, a\t declaration
\nunder Section 6 was also issued in respect of the said area.
\nAccording to the Government, the possession of the land\t was
\nalso  taken on 22nd and 24th of May, 1982.  The validity  of
\nthe  said notifications was questioned in the batch of\twrit
\npetitions  (being S.B. Civil Writ Petition No. 707  of\t1982
\netc.) on three grounds viz., (i) that the land acquired\t was
\nnot a waste or arable land inasmuch as there were pucca\t and
\nkutchha\t houses,  huts and cattle sheds etc.   On  the\tsaid
\nland.\tIf so, the power under sub-section (1) and  sub-sec-
\ntion  (4)  of  Section 17 could not  have  been\t invoked  to
\ndispense  with\tthe enquiry under Section  5(A);  (ii)\tthat
\nthere  was  no\treal urgency warranting\t the  invocation  of
\nurgency clause.\t An inquiry under Section 5(A) ought to have
\nbeen  held,  which is a valuable right given  to  the  land-
\nowners whose land is acquired under the Act; and (iii)\tthat
\nat  any\t rate the houses and other structures  on  the\tland
\nacquired should not have been acquired.\n<\/p>\n
The  learned  Judge rejected all the three  contentions\t and
\ndismissed   the\t writ  petitions.   Special   appeals\twere
\npreferred  against the same which were heard by\t a  Division
\nBench  in the first instance.  The two learned Judges,\tN.M.
\nKasliwal  and K.S. Siddhu, JJ. differed in  their  opinions.
\nAccordingly, the matter was referred to a third Judge by  an
\norder dated 12.12.1983. Three questions were framed for\t the
\nconsideration  of  third  Judge viz.,  (1)  whether  it\t was
\nnecessary for the Government to mention in the\tnotification
\nthat the land is waste or arable and whether the non-men-\n<\/p>\n
274<\/span><\/p>\n
tion of the said fact vitiates the notification; (2) whether
\nit  was\t obligatory upon the Government to  mention  in\t the
\nnotification  issued  under  Section  17(4)  that  the\tland
\nproposed  to be acquired is waste or arable and whether\t the
\nnon-mention thereof vitiates the said notification; and\t (3)
\n“if  a\tsmall  fraction of an arable  land  proposed  to  be
\nacquired is occupied by buildings like huts, kham houses and
\npucca  houses  for  residential\t purposes  and\tfor  keeping
\nfodder,\t cattle\t farms, cattle sheds and for  similar  other
\npurposes,  is it still permissible to treat the entire\tland
\nas  arable land and issue notification under  Section  17(4)
\nread  with Section 17(1) of the Rajasthan  Land\t Acquisition
\nAct,  1953?  If not, what are the legal\t consequences  which
\nsuch  buildings aforementioned entail in the context of\t the
\nsaid notification?’
\nThe  third Judge recorded his opinion on the said  questions
\nbut when the matter went back to the Division Bench, it\t was
\nof  the opinion that while the opinion of the learned  third
\nJudge  on questions 1 and 2 was categorical,  affirming\t the
\nview  of the learned Single Judge, his opinion\ton  question
\nNo.3  was not clear or categorical.  Accordingly,  the\tsaid
\nquestion No.3 was referred to a Full Bench.  The Full  Bench
\ncomprising N.M. Kasliwal, M.B. Sharma and Farooq Hasan,\t JJ.
\nheard the parties and held by a majority (Sharma and  Farooq
\nHasan,\tJJ.) that inasmuch as there were pucca\tand  kutchha
\nhouses,\t cattle sheds etc. on a fraction of a land  proposed
\nto  be\tacquired and also because the  notification  is\t not
\nseverable,  the entire notification under Section  17(4)  is
\nliable to fail.\t Accordingly, the declaration under  Section
\n6  was\talso quashed.  The minority view  was  expressed  by
\nKasliwal  J. He was of the opinion that merely because on  a
\nsmall portion of the land proposed to be acquired there were
\npucca  and  kutchha houses, the invocation  of\tpower  under
\nSection\t 17(4)\tread with Section 17(1) of the Act  was\t not
\nbad.   The opinion of the majority Judges is  questioned  in
\nthese appeals before us.\n<\/p>\n
Sri  Soli Sorabji, learned counsel for the appellant  (State
\nof Rajasthan) submitted that the question considered by\t the
\nFun Bench of the High Court is since concluded by a decision
\nof this court in State of U.P. v. Smt. Pista Devi,<\/a> [1986]  4
\nS.C.C.\t251  and,  therefore, the appeals  must\t be  allowed
\nstraightaway.  On the other hand, S\/Sri D.D. Thakur and S.K.
\nJain,  learned counsel for the\trespondent-writ\t petitioners
\nsubmitted on the basis of the decision in Sarju Prasad\tSaha
\nv.  The State of Uttar Pardesh, A.I.R. 1965 S.C.  1763\tthat
\nonce it is found that a portion of a land proposed to be
\n275<\/span>
\nacquired  is  not waste or arable, the\tentire\tnotification
\nshould\tfail inasmuch as the notification is not  severable.
\nThey  also  submitted that the decision in Dom\tPhalauli  v.
\nState of Punjab and Ors.,<\/a> [1979] 4 S.C.C. 485 supports their
\ncontention  that the notification under Section\t 17(4)\tread
\nwith  Section 17(1) should itself expressly recite that\t the
\nland in respect of which the said power is being invoked  is
\na waste or arable land and that non-recital of the said fact
\nvitiates the notification.  The learned counsel also  sought
\nto  argue  that\t there was no such urgency as  to  call\t for
\ndispensing  with  the  inquiry\tunder  Section\t5(A).\tThey
\nsubmitted  that when a large chunk of land  comprising\tfour
\nvillages was being acquired it was but fair and just that an
\ninquiry\t under\tSection 5(A) was held  The  construction  of
\nhouses by Housing Board, it was submitted, was not so urgent
\nas  to\tbrook  no delay and, therefore,\t the  invocation  of
\nurgency was not called for.\n<\/p>\n
So far as the main question which was considered by the\t Fun
\nBench  is concerned,it is necessary to refer to the  factual
\nfinding\t  in   the  first  instance.   Although\t  the\twrit
\npetitioners  contended\tthat there were pucca  houses,\tkham
\nhouses\tand  huts  used for residential\t purposes  and\talso
\ncattle\tsheds, cattle-ponds and other structures,  no  clear
\nmaterial was placed before the court.  With the result\tthat
\nthe Full Bench proceeded on the basis that these  structures
\nwere  stituated only upon a fraction of a land sought to  be
\nacquired.   We may quote the following observation from\t the
\njudgment of Sharma, J. (majority opinion):\n<\/p>\n
\t      “From  the  pleadings of the parties,  it\t can
\n\t      also no longer be disputed that in the case of
\n\t      some  of\tthe appellants on fraction  of\tthis
\n\t      land kuchcha houses, kham houses and even some
\n\t      pucca  constructions  are situated  which\t are
\n\t      being  used  by the appellants  for  tethering
\n\t      their cattle, storage of fodder and grain\t and
\n\t      also  for residential purposes.  It cannot  be
\n\t      said  as to out of the large area\t of  2570.15
\n\t      bighas on what portion such constructions have
\n\t      been  made, but in case of the  appellants  in
\n\t      each case they could be only on a fraction  of
\n\t      the entire land sought to be acquired.<\/p><\/blockquote>\n
\t\t\t     (emphasis added)
\nThe  question is, whether in such a situation  the  majority
\nJudges\tof  the Full Bench were right in  holding  that\t the
\nnotification under Section 17(4) should fail.\n<\/p>\n
276<\/span><\/p>\n
In  State  of U.P. v. Smt.  Pista Devi,<\/a> a  bench  comprising
\nE.S.  Venkataramiah and Khalid, JJ. considered an  identical
\nquestion.   That case arose from Uttar Pradesh where by\t way
\nof  a  State amendment sub-section 1(A)\t was  introduced  in
\nSection\t 17.   Paragraph 7 of the judgment  brings  out\t the
\nratio  of  the\tjudgment  besides  quoting  the\t said  State
\nAmendment.  It reads:\n<\/p>\n
\t      “It  was\tnext  contended that  in  the  large
\n\t      extent  of land Acquired which has  about\t 412
\n\t      acres there were some buildings here and there
\n\t      and  so the acquisition of those parts of\t the
\n\t      land  on\twhich buildings\t were  situated\t was
\n\t      unjustified  since  those\t portions  were\t not
\n\t      either  waste or arable lands which  could  be
\n\t      dealt  with  under Section 17(1) of  the\tAct.
\n\t      This contention has not been considered by the
\n\t      High  Court.   We do not,\t however,  find\t any
\n\t      substance\t in  it.   The\tgovernment  was\t not
\n\t      acquiring any property which was substantially
\n\t      covered  by buildings.  It acquired about\t 412
\n\t      acres of land in the outskirts of Meerut\tcity
\n\t      which  was  described as arable  land  by\t the
\n\t      Collector.  It may be true that here and there
\n\t      were  a  few super-structures.  In a  case  of
\n\t      this  nature where a large extent of  land  is
\n\t      being acquired for planned development of\t the
\n\t      urban area it would not be proper to leave the
\n\t      small   portions\t over  which   some   super-
\n\t      structures  have been constructed out  of\t the
\n\t      development scheme.  In such a situation where
\n\t      there is real urgency it would be difficult to
\n\t      apply  Section 5-A of the Act in the  case  of
\n\t      few bits of land on which some structures\t are
\n\t      standing\tand  to\t exempt\t the  rest  of\t the
\n\t      property\tfrom its application.\tWhether\t the
\n\t      land  in question is waste or arable land\t has
\n\t      to be judged by looking at the general  nature
\n\t      and   condition  of  the\tland.\tIt  is\t not
\n\t      necessary in this case to consider any further
\n\t      legality\tor the propriety of the\t application
\n\t      of  Section 17(1) of the Act to such  portions
\n\t      of  land\tproposed to be\tacquired,  on  which
\n\t      super-structures were standing because of\t the
\n\t      special  provision which is inserted  as\tsub-
\n\t      section (1-A) of Section 17 of the Act by\t the
\n\t      Land  Acquisition (U.P. Amendment Act) (22  of
\n\t      1954) which reads thus:\n<\/p><\/blockquote>\n
\t      (1-A) The power to take possession under\tsub-
\n\t      section (1) may also be exercised in the\tcase
\n\t      of land other than waste or arable land, where
\n\t      the land is acquired for or in connection with
\n\t      277<\/span>
\n\t      sanitary\timprovements of any kind or  planned
\n\t      development.”\n<\/p><\/blockquote>\n
We  are of the opinion that the principle enunciated in\t the
\nsaid  paragraph\t is  the  correct  one\tand  that  the\tsaid
\nprinciple  is  not really based upon  sub-section  (1-A)  of
\nSection\t 17  introduced\t by U.P.  State\t Amendment.   Having
\nexpressed a definite opinion that existence of a few  super-
\nstructures  here and there, where a large extent of land  is
\nbeing  acquired,  does\tnot  prevent  the  government\tfrom
\nexercising the power under Section 17(4), the learned  Judge
\nevolved the following test: “whether the land in question is
\nwaste  or arable has to be judged by looking at the  general
\nnature\tand  condition\tof the land.’ Having  so  held,\t the
\nlearned\t Judges referred to the U.P. State Amendment by\t way
\nof  an additional supporting ground.  We are of the  opinion
\nthat even apart from the said State amendment, the principle
\nenunciated  in the said decision is the correct one  and  is
\nfully applicable here.\tMr. Sorabji is, therefore, right  in
\ncontending  that the said decision concludes the said  issue
\nin these appeals.\n<\/p>\n
The learned counsel for the respondents, however,  submitted
\non  the\t basis of the decision in Sarju Prasad Saha  v.\t The
\nState  of U.P. & Ors., A.I.R.<\/a> 1965 S.C. 1763 that in such  a
\nsituation  the notification being not severable, the  entire
\nnotification  should  fail.  We cannot agree.\tThat  was  a
\nconverse  case\tin the sense that a major part of  the\tland
\nproposed  to  be  acquired  was\t covered  by  buildings\t and
\nconstructions whereas only smaller part was waste or arable.
\nIt  is\tin  such  a case that  the  court  opined  that\t the
\nnotification  cannot  be  held\tto  be\tpartially  good\t and
\npartially  bad.\t Accordingly, it was held,  dispensing\twith
\nenquiry under Section 5(A) by invoking the urgency clause in
\nSection\t 17(4)\twas bad.  Paragraph (9) relied upon  by\t the
\nlearned counsel may now be set out.  It reads:\n<\/p>\n
\t      “One  other  point raised at the\tBar  may  be
\n\t      briefly referred to.  It was contended by\t Mr.
\n\t      S.P.   Sinha  appearing  on  behalf   of\t the
\n\t      Municipal\t Board,\t Basti, that a part  of\t the
\n\t      land  notified  for acquisition was  waste  or
\n\t      arable  and  in  support\tof  his\t contention,
\n\t      counsel referred us to certain revenue record.
\n\t      But  if  only a part of the land is  waste  or
\n\t      arable  and  the rest is not,  a\tnotification
\n\t      under S. 17(4) dispensing with compliance with
\n\t      the  requirements of S. 5-A would be  invalid.
\n\t      It  would not be open to the Court  to  regard
\n\t      the   notification  as  partially\t  good\t and
\n\t      partially\t bad, for if the State had no  power
\n\t      to dispense with the inquiry in respect of any
\n\t      part of the land notified under
\n\t      278<\/span>
\n\t      S.4(1),  an inquiry must be held\tunder  S.5-A
\n\t      giving an opportunity to persons interested in
\n\t      the land notified to raise their objections to
\n\t      the  proposed acquisition and in that  inquiry
\n\t      the persons interested cannot be restricted to
\n\t      raising  objections in respect of\t land  other
\n\t      than waste or arable land.”\n<\/p><\/blockquote>\n
We  don not think that in a case where only a fraction of  a
\nlarge  extent of land sought to be acquired is not waste  or
\narable,\t the  observations  made in the\t said  judgment\t are
\napplicable.\n<\/p>\n
The  counsel  for  the respondents  then  relied  upon\tDora
\nPhalauli  v. State of Punjab & Ors.,<\/a> [1979] 4 S.C.C. 485  in
\nsupport\t of  their contention that  the\t notification  under
\nSection\t 17(4)\tshould\tnecessarily  recite  that  the\tland
\nconcerned  is waste or arable land and that absence of\tsuch
\nrecital renders the. notification invalid.  The observations
\nrelied\tupon in the judgment of N.L. Untwalia and A.P.\tSen,
\nJJ. read thus:\n<\/p>\n
\t      “It  is  to be clearly understood\t that  under
\n\t      sub-section  (4), the  appropriate  Government
\n\t      may direct that the provisions of Section\t 5-A
\n\t      shall  not apply where in the opinion  of\t the
\n\t      State  Government,  the  provisions  of\tsub-
\n\t      section (1) or sub-section (2) are applicable,
\n\t      otherwise\t not.  For making the provisions  of
\n\t      sub-section (1) applicable, two things must be
\n\t      satisfied, firstly that the land in respect of
\n\t      which  the urgency provision is being  applied
\n\t      is waste or arable and secondly, that there is
\n\t      an urgency to proceed in the matter of  taking
\n\t      immediate\t possession and so the right of\t the
\n\t      owner  of\t the land for  filing  an  objection
\n\t      under Section 5-A should not be made available
\n\t      to  him.\tIn the portion of  the\tnotification
\n\t      which  we have extracted above, it is  neither
\n\t      mentioned that the land is waste or arable nor
\n\t      has it been stated that in the opinion of\t the
\n\t      Government,  there  was any  urgency  to\ttake
\n\t      recourse\tto the provisions of Section  17  of
\n\t      the  Act.\t  A direction to the  Collector\t has
\n\t      been given to take action under Section 17  on
\n\t      the ground of urgency but this is not a  legal
\n\t      and complete fulfillment of the requirement of
\n\t      the  law.\t  It is to be  remembered  that\t the
\n\t      right  of a person having any interest in\t the
\n\t      property to file an objection under Section 5-
\n\t      A of the Act should not be interfered with  in
\n\t      such  a casual or cavalier manner as has\tbeen
\n\t      done in this case.”\n<\/p><\/blockquote>\n
279<\/span><\/p>\n
  The learned Judges observed that the notification  neither
\nmentions  that\tthe  land is waste or  arable  nor  does  it
\nmention\t that  in the opinion of the  government  there\t was
\nurgency\t to  take recourse to the provision of\tSection\t 17.
\nThe  decision is not really based upon the ground  that\t the
\nnotification  fails  to\t recite that the land  is  waste  or
\narable.\t  The  paragraph  read as a  whole  shows  that\t the
\nlearned\t Judges\t were impressed more by the  fact  that\t the
\nnotification  does not state that the government is  of\t the
\nopinion\t that it was a case where the inquiry under  Section
\n5-A  ought to be dispensed with under Section 17(4).  It  is
\nin  that  context  that\t they  also  pointed  out  that\t the
\nnotification  does  not\t recite that the land  is  waste  or
\narable.\t  Section 17(4) does not require  that\tnotification
\nitself\tshould\trecite the fact that the land  concerned  is
\nwaste or arable.  In such a situation there is no basis\t for
\nthe  respondent’s  contention that the\tnotification  should
\nitself\trecite\tthe  said fact nor does\t the  said  decision
\nsupport their contention.\n<\/p>\n
   Sri Thakur further argued that the construction of houses
\nby  Housing Board is not of such urgency as to call for\t the
\ninvocation  of\tthe  said  power.   We\tare  not  satisfied.
\nFirstly, on this question the decision of the Rajasthan High
\nCourt  is against the writ petitioners.\t The learned  Single
\nJudge  negatived it as well as Division Bench following\t the
\nopinion of the third Judge.  Secondly, we are satisfied that
\nthere  was material before the government in this case\tupon
\nwhich it could have and did form the requisite opinion\tthat
\nit  was a case calling for exercise of power  under  Section
\n17(4).\t The  learned  Single  Judge  has  referred  to\t the
\nmaterial  upon\twhich  the government had  formed  the\tsaid
\nopinion.   The\tmaterial placed before the  Court  disclosed
\nthat  the government found, on due verification, that  there
\nwas  an acute scarcity of land and there was heavy  pressure
\nfor  construction of houses for weaker sections\t and  middle
\nincome\tgroup people; that the Housing Board had obtained  a
\nloan  of  Rs.  16 crores under\ta  time-bound  programme  to
\nconstruct and utilise the said amount by 31.3.1983; that  in
\nthe  circumstances the Government was satisfied that  unless
\npossession  was\t taken immediately, and\t the  Housing  Board
\npermitted  to proceed with the construction, the Board\twill
\nnot  be\t able  to adhere to the\t time-bound  programme.\t  In
\naddition  to the said fact, the Division Bench\treferred  to
\ncertain\t other material also upon which the  government\t had
\nformed the said satisfaction viz., that in view of the time-
\nbound  programme stipulated by the lender, HUDCO, the  Board
\nhad already appointed a large number of engineers and  other
\nsubordinate  staff for carrying out the said work  and\tthat
\nholding an inquiry under Section 5-A would have resulted  in
\nuncalled
\n280<\/span>
\nfor delay endangering the entire scheme and time-schedule of
\nthe   Housing  Board.\tIt  must  be  remembered  that\t the
\nsatisfaction  under  Section 17(4) is a subjective  one\t and
\nthat so long as there is material upon which the  government
\ncould  have formed the said satisfaction fairly,  the  court
\nwould not interfere nor would it examine the material as  an
\nappellate  authority.\tThis is the  principle\taffirmed  by
\ndecisions  of  this court not only under Section  17(4)\t but
\nalso generally with respect to subjective satisfaction.
\n  For  the  above reasons, the appeals are allowed  and\t the
\njudgment  of  the  Full Bench of the  Rajasthan\t High  Court
\nimpugned  herein as set aside.\tHaving regard to  the  facts
\nand circumstances of the case, we direct the parties to bear
\ntheir own costs.\n<\/p>\n
    WITH PETITION (C) NO. 290 OF 1989
\n   This\t writ  petition is preferred by the  New  Pink\tGrih
\nNirman Sahkari Sangh questioning the very same\tnotification
\nwhich  were  questioned\t in  the  writ\tpetitions  filed  in
\nRajasthan  High\t Court\tand which have\tgiven  rise  to\t the
\naforementioned\tCivil Appeals.\tIt was admitted\t because  of
\nthe  pendency  of the above appeals and was directed  to  be
\nheard alongwith them.  In the writ petition, several reliefs
\nare  asked  for\t viz., quashing of  the\t notification  under
\nSection\t 4(1),\tquashing of the notification  under  Section
\n17(1),\tquashing of the notification under section 17(4)  as
\nwell  as the declaration under Section 6. It is prayed\tthat
\nthe  acquisition proceedings must be declared to  have\tbeen
\nwithdrawn  by  virtue of the order of  the  Hon’ble  Housing
\nMinister of Rajasthan dated 20th July, 1984.
\n   Before us, however, Sri D.D. Thakur, learned counsel\t for
\nthe  petitioner\t urged\tonly one contention  viz.,  that  by
\nvirtue\tof the decision of the Minister in-charge  of  Urban
\nDevelopment, Government of Rajasthan and the Chief  Minister
\ndated 8.2.1990 the Rajasthan Government must be held to have
\nwithdrawn  from the said acquisition proceedings within\t the
\nmeaning\t of Section 48 of the Land Acquisition Act, 1894  in
\nso far as the lands purchased by the petitioner-society\t are
\nconcerned.  For a proper appreciation of this contention, it
\nis necessary to notice the relevant facts and  circumstances
\nin their sequence.\n<\/p>\n
   The\tnotification  under section 4(1) was  published on
\n12.1.1982. On 9.2.1982, the notification under section 17(4)
\nand the declaration under section 6 were issued.   According
\nto the government, possession was also
\n281<\/span>
\ntaken of the entire extent of land on 22nd and 24th of\tMay,
\n1982.\n<\/p>\n
The  petitioner-cooperative  society which  claims  to\thave
\npurchased  about  525  bighas of  land\tfrom  the  khatedars
\nrepresented   to  the  Government  to  de-notify  the\tland
\npurchased by them.  On the basis of the said representation,
\nthe  then  Minister in-charge of Urban\tDevelopment  took  a
\ndecision on 20.7.1984 to release the lands but he was  over-
\nruled  by  the\tthen Chief Minister  Sri  Harideo  Joshi  on
\n29.4.1985. The decision of the Chief Minister has also\tbeen
\nplaced\tbefore\tus.  This issue lay dormant till  1990.\t  On
\n27.1.1990, general elections were announced.  Polling was to
\ntake  place on 27.2.1990. It is at this stage that a  sudden
\nurgency appears to have developed in this matter again.\t The
\npetitioner-society made a representation on 6.2.1990 to\t the
\nMinister  for  Urban  Development  to  de-notify  the  lands
\npurchased  by  them.   The Minister  for  Urban\t Development
\nrecommended de-notification which was approved by the  Chief
\nMinister Sri Harideo Joshi on 8.2.1990. It was signed by the
\nMinister concerned on 13.2.1990.\n<\/p>\n
The recommendation put up by the Urban Development  Minister
\nfor  the  consideration\t of the Chief  Minister\t stated\t the
\nfollowing  facts:  The petitioner-society had  entered\tinto
\nagreements  of sale in 1974-75 and 1975-76 for purchasing  a
\nsubstantial  extent of land for developing the Indira  Bihar
\nResidential Scheme and had also allotted plots to its  three
\nthousand members during the years 1976 to 1981.\t The society
\nhad  deposited Rs. 50,000 as sub-division charges  according
\nto  rules in the year 1981 with the Urban Improvement  Trust
\nand had initiated proceedings for technical approval of\t the
\nscheme\tin the same year.  The society had also deposited  a
\nsum  of\t Rs. 9 lakhs towards conversion of  the\t land  (from
\nagricultural to urban land) in the office of the  Additional
\nCollector,  Land  Conversion in March, 1982 under  the\tLand
\nConversion  Rules,  1981.  The Housing\tBoard  had  actually
\nstarted the proceedings for acquisition and the\t acquisition
\nnotifications  were issued in January, 1982 i.e., after\t the
\nsociety\t had taken the above steps.  The  petitioner-society
\nhad  obtained a stay order against the acquisition  proceed-
\nings  and that as in 1990, the stay granted by\tthe  Supreme
\nCourt was in force.  On 18.1.1990, the State Government\t had
\ntaken  a  policy decision to regularise and  de-acquire\t the
\nlands  under acquisition covered by schemes of\tthe  Housing
\nCooperative Societies on payment of prescribed amount.\t The
\nsaid  policy may be applied to the  petitioner-society.\t  As
\nfar as the question of exemption
\n282<\/span>
\nfrom  urban land ceiling is concerned, all the plot  holders
\nof this society, like other societies, will hand over  their
\nplots to the Jaipur Land Authority and it shall be deemed to
\nbe  the government land but will be re-allotted to the\tsame
\nplot holders after charging the fixed price and\t development
\ncharges\t on  prescribed\t terms.\t  This\tprocedure  is  being
\nfollowed by Jaipur Development Authority in other matters as
\nwell.  In this way, the problem of exemption from the  urban
\nland ceiling would also be solved.  The final recommendation
\nwas: ‘looking  to  the aforesaid facts it  is  desirable  to
\ndirect to de-acquire that land\t   of  the scheme under\t the
\nprovisions of section 48 of the Land Acquisition Act,  1894
\nand regularise the scheme because this society is fulfilling
\nthe  same public purpose of housing by starting\t proceedings
\nfor which the Housing Board wants to acquire this land later
\non for this purpose.”\n<\/p>\n
The above recommendation was accepted by the Chief  Minister
\non  8.2.1990  as stated hereinbefore.  It appears  that\t the
\nmatter\tagain  came  before the Hon’ble\t Chief\tMinister  on
\n23.2.1990 when he approved a note, the latter half of  which
\nreads as follows: “Therefore, it will be in the interest  of
\nbroad  public  interest\t that this land of  the\t society  be
\nregularised  according\tto  the decision  of  Cabinet  after
\nreleasing  it  from  acquisition,  as  is  the\topinion\t  of
\nHonourable  Minister Incharge Local Self Govt,\tand  Housing
\nMinister.  As far as the question of Scheduled\tCaste\/Tribes
\nland  is  concerned,  in this  respect\tthe  Government\t has
\nalready taken a decision much before, according to which the
\nproceedings are to be taken.” Evidently, in pursuance of the
\naforesaid decision, the Deputy Secretary, Urban\t Development
\nand Housing Department, Government of Rajasthan, Jaipur\t ad-
\ndressed\t the  following letter to the  secretary,  Rajasthan
\nHousing Board, Jaipur:\n<\/p>\n
\t\t   “RAJASTHAN GOVERNMENT
\n\t   URBAN DEVELOPMENT AND HOUSING DEPARTMENT
\n\t No. F. 5(3) UDH\/92\t      DATED 24.4.90.\n<\/p>\n
Secretary,
\nRajasthan Housing Board,
\nJaipur.\n<\/p>\n
Sub:-  In  the matter of De-acquisition of  land  of  Indira
\nBihar  Scheme  Sahkari\tSamiti situated\t in  village  Devri,
\nSukhalpura, Jhalana Chaur, and Goliyabas.\n<\/p>\n
283<\/span><\/p>\n
      Sir,
\n\t      In  respect of the above subject it  has\tbeen
\n\t      directed by the State Govt. that a decision to
\n\t      release the aforesaid land of the Society from
\n\t      acquisition  has\tbeen  taken.   It  has\tbeen
\n\t      brought to the notice of the State  Government
\n\t      that some improvement has been done by you  on
\n\t      the  land covered by this scheme.\t  Therefore,
\n\t      kindly  intimate as to what development  works
\n\t      have been performed by you on the land covered
\n\t      by the aforesaid scheme of the society and how
\n\t      much  expenditure\t has been  incurred  by\t the
\n\t      Housing  Board  in it.  Please send  the\tfull
\n\t      particulars  to  the State  Govt.\t immediately
\n\t      also inform as to at what stage the matter  is
\n\t      going in the courts without delay.  Now so far
\n\t      as possible do not make any development  works
\n\t      further on this land.  Intimate as to  whether
\n\t      possession of the land has been taken or\tnot.
\n\t      Before restoring the possession to the society
\n\t      the amount of development charges will have to
\n\t      be   returned   back,  therefore,\t  send\t the
\n\t      valuation\t  within  three\t days.\t  Conversion
\n\t      charges  will  be\t payable  according  to\t the
\n\t      rules.  The copies of the orders of the  court
\n\t      may also be sent.\n<\/p>\n
\t\t\t\t     Yours faithfully,
\n\t\t\t\t\t   sd\/
\n\t\t\t\t\tDy. Secretary.’
\nA copy of the said letter was also marked to the  petitioner
\nsociety as would be evident from the endorsement at the foot
\nof the said letter which reads:\n<\/p>\n
“No.  F. 5(3) UDB\/90 Dated: 29.2.90
\nCopy  to  the secretary, New Pink City Grah  Nirman  Sahkari
\nSamiti\tLtd.,  Bapu Bazar, Jaipur for information.   He\t may
\nkindly intimate as to within what period of time the  amount
\nof  Development\t charges  and  cost of\tland  etc.  will  be
\ndeposited.\n<\/p>\n
\t\t\t\t\t\tsd\/
\n\t\t\t\t Dy. Secretary to the Govt.\n<\/p>\n
\t\t\t\t\t    28.2.90″\n<\/p>\n
284<\/span><\/p>\n
The learned counsel for the writ petitioners stops here\t and
\nsays  that the above proceedings constitute a  definite\t and
\nfinal  decision\t to de-notify and de-acquire the  lands\t and
\nthat  nothing  more was required to be\tdone  to  constitute
\nwithdrawal  from acquisition within the meaning\t of  section\n<\/p>\n
48.
\nSri  F.S.  Nariman, the learned counsel\t appearing  for\t the
\ngovernment  of\tRajasthan,  however,  filed  an\t  additional
\naffidavit  setting  out the developments subsequent  to\t the
\naforesaid  letter dated 24.2.1990 which may now be  noticed.
\nThe  additional\t affidavit  is sworn to\t by  the  Secretary,
\nRajasthan  Housing Board, Sri M.K.Khanna. It is stated\tthat
\nin  response  to the aforesaid letter dated  24.2.1990,\t the
\nRajasthan  Housing Board represented to the Government\tthat
\nthe land should not be de-notified whereupon the  Secretary,
\nurban  Development and Housing ordered the stopping  of\t the
\nissuance  of notification for de-acquisition of the land  of
\nthe  petitioner\t society  on 25.5.1990.\t (Meanwhile,  a\t new
\nGovernment  represented by a different political  party\t had
\ncome  into  power).   The  order  of  the  secretary   dated
\n25.5.1990 is filed as Ann.  X-1 to the additional affidavit.
\nIt is further submitted that at no time any notification was
\nissued\twithdrawing  from the acquisition.   It\t is  further
\nstated\tthat on 13.12.1990 the then Chief Minister  referred
\nthe   entire   matter  pertaining   to\t de-acquisition\t  of
\npetitioner’s  land to the Beri Commission for  report.\t The
\nsaid  commission was constituted to look  into\tillegalities
\nand  irregularities  committed\tby  the\t functionaries\t and
\nofficials  of the previous government.\tThe Beri  Commission
\nreported  that the decision to de-acquire the lands  of\t the
\npetitioner-society  was\t in  contravention  of\tthe  earlier
\ndecision of the Cabinet, contrary to law and against  public
\ninterest.  The commission stated that the said decision\t was
\nthe  result  of\t the influence brought\tupon  the  concerned
\nMinister  by  the  petitioner- society and  is\tnot  a\tfair
\ndecision.  The Chief Minister also acted under the influence
\nand  pressure of the petitioner-society and, therefore,\t his
\ndecision  too  is  not a proper\t one.\tAccepting  the\tsaid
\nreport, the government intimated the Rajasthan Housing Board
\nthat  there  is no question of de-acquiring the\t said  land.
\nThe  letter dated 24.4.1990 was also formally  withdrawn  on
\n31.10.1991.  It\t is  also  stated  in  the  said  additional
\naffidavit  that the Khatedars from whom the society  claimed
\nto  have purchased the said land under agreements  of  sale,
\nhave by separate letters intimated the Secretary,  Rajasthan
\nHousing Board and the Land Acquisition Collector as far back
\nas  5th\t April,\t 1982  that they had  no  objection  to\t the
\nacquisition  of their lands.  They asked for compensation  @
\nRs. 40,000\/ per bigha.\n<\/p>\n
285<\/span><\/p>\n
From the above material it is clear that there was no  final
\ndecision  at  any  time\t to de-notify  the  said  lands.   A
\ntentative decision was no doubt taken in February, 1990\t but
\nbefore\tit  could be implemented the government\t thought  it
\nnecessary to ascertain the views of the Housing Board and to
\nfind  out as to what the Board had done upon the land,\twhat
\nstructures  it\thad raised and what amount it had  spent  so
\nthat  the  Board could be compensated while  delivering\t the
\npossession  back to the Housing society.  Before this  could
\nbe  done there was a change in the government and  the\tsaid
\ntentative  decision  was  reversed.  In\t this  view  of\t the
\nmatter,\t it is not necessary for us to go into the  question
\nwhether\t there was a communication of the ‘decision’ of\t the
\ngovernment to the petitioner.  The communication must be  of
\na  final  decision  and not of a  provisional  or  tentative
\ndecision.\n<\/p>\n
We  are\t of  the  further opinion  that\t in  any  event\t the
\ngovernment  could  not have withdrawn from  the\t acquisition
\nunder  section 48 of the Act inasmuch as the Government\t had
\ntaken  possession of the land.\tOnce the possession  of\t the
\nland  is taken it is not open to the government to  withdraw
\nfrom  the  acquisition.\t  The very  letter  dated  24.2.1990
\nrelied\tupon by the counsel for the petitioner recites\tthat
\n‘before\t restoring the possession to the society the  amount
\nof   development   charges   will  have\t  to   be   returned
\nback………….  This\t shows clearly that  possession\t was
\ntaken  over by the Housing Board.  Indeed the very tenor  of
\nthe  letter  is,  asking  the  Housing\tBoard  as  to\twhat
\ndevelopment  work they had carried out on the land  and\t how
\nmuch expenditure they had incurred thereon, which could\t not
\nhave  been  done unless the Board was in possession  of\t the
\nland.\tThe  Housing  Board  was  asked\t to  send  the\tfull
\nparticulars  of\t the  expenditure and not to  carry  on\t any
\nfurther development works on that land.\t Reading the  letter
\nas a whole, it cannot but be said that the possession of the
\nland  was taken by the government and was also delivered  to
\nthe  Housing  Board.  Since the possession of the  land\t was
\ntaken,\tthere could be no question of withdrawing  from\t the
\nacquisition  under section 48 of the Land  Acquisition\tAct,
\n1894.\n<\/p>\n
For  the  above\t reasons, the writ  petition  fails  and  is
\ndismissed with costs.\n<\/p>\n
G.N.\t\t\t\t   Appeals allowed.\n\t\t\t\t Petition dismissed.\n286<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rajasthan Housing Board And Ors. … vs Kishan And Ors. Etc. Etc on 27 January, 1993 Equivalent citations: 1993 SCR (1) 269, 1993 SCC (2) 84 Author: B Jeevan Reddy Bench: Jeevan Reddy, B.P. (J) PETITIONER: RAJASTHAN HOUSING BOARD AND ORS. ETC. ETC. Vs. RESPONDENT: KISHAN AND ORS. ETC. ETC. DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-28372","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRajasthan Housing Board And Ors. ... vs Kishan And Ors. Etc. 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