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Gopal Singh and anr. Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 471 of 1961
Judge
Reported inAIR1964Raj270
ActsRajasthan Land Acquisition Act, 1953 - Sections 4, 4(1), 4(2), 5A, 6, 9 and 17
AppellantGopal Singh and anr.
RespondentState of Rajasthan and anr.
Appellant Advocate Sumer Chand Bhandari and; Ram Vilas, Advs.
Respondent Advocate Raj Narain, Dy. Govt. Adv.
DispositionPetition allowed
Cases Referred and Iftjkhar Ahmed v. State of Madhya Pradesh
Excerpt:
.....that since the collector failed to discharge his part of the duty and the papers containing the petitioners objections and his recommendations were not forwarded to the government, the government had no opportunity to base its decision thereon. a published on 29th september, 1960, when the petitioners submitted their objections on 3rd november, 1960, other residents of village redi also made their representation on 5th november, 1960. it was complained in the representation by the village people (ex. 11. it would appear from the above narration of facts that the stand taken on behalf of the non-petitioners in the reply dated 15th january, 1964 is inconsistent with the reply which was submitted on 21st july, 1962. in the first reply, it was clearly stated that the notification ex. d..........4 (1) shows that it casts a duty on the collector to cause public notice of substance of the government notification to be given at convenient places in the, locality where the land, which is sought to be acquired, is situated. issue of the public notice is very necessary, so that those persons, who are interested in the land, which is sought to be acquired, may be able to file their objections under section 5-a. it is also necessary to enable the employees of the govt. to enter upon the land, make necessary survey and find out if it is suitable for the purpose for which it is sought to be acquired. it is only after such a public notice is issued that it becomes lawful for the officers to proceed tinder section 4 (2). in the absence of such a notice they are likely to find.....
Judgment:

Dave, C.J.

1. This is a writ application under Article 226 of the Constitution of India.

2. It is common ground between the parties that the petitioners Gopal Singh and Surat Singh are Khatedars of Khasra Nos. 41 and 36 respectively, situated in village Redi, Tehsil Taranagar, District Churu. In 1955, Panchayat Gajoowas, which also exercised jurisdiction over village Redi, came to the conclusion that the abadi area of village Redi should be extended by acquiring some agricultural land adjoining the inhabited area in order to convert it for purposes of habitation. It, therefore, wrote to the Tehsildar, Taranagar for acquiring land for the said purpose. The matter was how ever dropped after about four years by order of the Collector, Churu dt. 15th January, 1959. Thereafter in December, 1959, the Tehsildar, Taranagar again recommended to the Collector for acquiring the land for the said purpose. The Collector, in turn, wrote to the Government and the Government issued a notification (Ex. A) dt. 11th August, 1960 under Section 4(1) of the Rajasthan Land Acquisition Act (No. 24 of 1953) (hereinafter called 'the Act'). This notification was published in the Rajasthan Gazette dated 29th September, 1960. The petitioners presented an application (Ex. C) dated 3rd November, 1960 to the Collector, Churu, raising certain objections against the acquisition of their land.

3. The petitioners have contested the legality of the proceedings taken after the publication of the said notification. It is urged in the first instance that under Section 4(1) of the Act it was necessary for the Collector to cause public notice of the substance of the said notification to be given at convenient places in the said locality, but no such public notice was issued by him and thus the mandatory provisions of law were not complied with. It is next urged that even though no such notice was issued by the Collector the petitioners, when they came to know of the notification, presented their objections before the Collector on 3rd November, 1960. These objections ought to have been considered by the Collector and the petitioners should have been afforded an opportunity of being heard either in person or by their pleader but no such opportunity was given to them and thus he contravened the provisions of Section 5-A, of the Act.

The petitioners proceed to say that under Section 5-A of the Act it was further necessary for the Collector to forward all the objections raised by the petitioners together with the proceedings of the enquiry made by him and he should have also sent a report containing; his recommendations on the objections raised by the petitioners. It was only on the basis of this data that the Government could give its decision under Section 5-A of the Act. It is pointed out by the petitioners that since the Collector failed to discharge his part of the duty and the papers containing the petitioners objections and his recommendations were not forwarded to the Government, the Government had no opportunity to base its decision thereon. The petitioners' second objection thus relates to non-compliance of the provisions of Section 5-A of the Act.

4. The third Contention raised by the petitioners 'is that the Government of Rajasthan made its declaration under Section 6 of the Act on 3rd June; 1961 and that it was published in the Rajasthan Gazette dated August, 1961 (Ex. F). It is urged that according to Section 6(1) of the Act, such a declaration should have been made by the Government only after considering the reports of the Collector under Section 5-A of the Act, but since the petitioners' objections were not forwarded by the Collector and no proper report was made under Section 5-A of the Act, this declaration was also not valid in law.

5. The fourth contention raised by the petitioners is that the Land Acquisition Officer issueda notification on 30th November, 1960 under Section 9of the Act (Ex. D). It is pointed out that thenotice under Section g of the Act could be issued only after the publication of the declaration under Section 6 and since the declaration was publishedon 3rd August, 1961, the notice (Ex, D) under Section 9 dated 30th November, 1960 was invalid.

6. The last objection of the petitioners is that) an order to cover all the mistakes committed by the Land Acquisition Officer and the Collector, the Govt. proceeded to issue a notification (Ex. G) dt. 20th June, 1961, under Section 17(1) and (4) of the Act. It is contended that the proceedings under Sub-section (1) of Section 17 could be taken by the Collector only after the expiration of fifteen days from the publication of the notice mentioned in Section 9 but since the provisions of Section 9 were not duly complied with, the special powers under Sub-section (1) could not be exercised lawfully. As regards the exercise of the powers by the Government under Sub-section (4), it is contended that they could be used only in case of urgency. According to learned counsel, no urgency was expressed in the notification Ex. G. It is further contended that the direction under Sub-section (4) could be given only prior to the notification under Section 6 of the Act, but the notification under Section 6, though invalid, was already made by the Government on 3rd June, 1961 and, therefore, those powers could not be exercised on 20th June, 1961 under the law.

7. It is further stated by the petitioners that after the notification Ex. G, the Land Acquisition Officer issued a notice (Ex. 13) under Section 9 of the Act. This was not served on the petitioners because the note made 011 its back by the process server shows that the petitioners had gone to Jodhpur and were not available in the village. Even then an ex parte award was made against the petitioners on 21st September, 1961 and a very small amount was awarded to them in compensation.

8. It is prayed by the petitioners that all the proceedings taken against them subsequent to the publication of the notification under Section 4(1) of the Act were thus not in accordance with law, that their property has been acquired illegally for a meagre sum and, therefore, the proceedings subsequent to the publication of the notification under Section 4(1) of the Act should be quashed.

9. In reply, it is urged by learned Deputy Government Advocate that although a public notice containing the substance of the notification under Section 4(1) of the Act does not appear to have been issued by the Collector, the petitioners had notice of the notification Ex, A and, therefore, they were not prejudiced. According to him, the mere fact that a public notice was not issued would not invalidate the subsequent proceedings. Regarding the objections filed by the petitions on 3rd November, 1960, it is pointed out that they should have been made within thirty days of the issue of the notification, and since they were not presented within the prescribed period, they were time-barred. As to the objection about the non-compliance of the provisions of Section 5-A of the Act, it has been submitted that when the petitioners' objections were time barred it was not necessary for the Collector to forward them to the Government. Regarding the notice under Section 9 (Ex. D), it is stated that Section 9 was mentioned therein inadvertently and that in fact it was a notice given under Section 4 (1) of the Act. It was asserted that the notification under Section 6 (Ex. F) was quite valid and that no action under the notification (Ex. G) was taken since the provisions of section 9 of the Act were not complied with. This reply was submitted on 21st July, 1962.

10. A second reply has been submitted on behalf of the non-petitioners on 15th January, 1964. With this reply a few documents have been produced, and on their basis it is pointed out that after the issue of the notification Ex. A published on 29th September, 1960, when the petitioners submitted their objections on 3rd November, 1960, other residents of village Redi also made their representation on 5th November, 1960. It was complained in the representation by the village people (Ex. 16) that the petitioners were influential persons in the village, that they were trying to make certain constructions on their land in order to defeat the acquisition proceedings, that the village people were in urgent need of land for construction of buildings and that the objections raised by the petitioners should be rejected. The Land Acquisition Officer moved the. Collector and the Collector thereupon wrote to the Government to issue notification under Section 17 (4) and Section 6 of the Act (vide Ex. 23 dated 5th April, 1961). It is pointed out that it was on the basis of this report that the Government issued notification (Ex. G) under Section 17 (4) of the Act. It is further urged that since the notification (Ex. F) was published in the Rajasthan Gazette dated 3rd August, 1961, after the publication of the notification (Ex. G) which was published on 27th July, 1961, both these notifications were quite valid. According to him, there was no necessity of the compliance of Section 5-A of the Act in view of the notification Ex. G and, therefore, it is prayed that all the objections raised by the petitioners should be dismissed.

11. It would appear from the above narration of facts that the stand taken on behalf of the non-petitioners in the reply dated 15th January, 1964 is inconsistent with the reply which was submitted on 21st July, 1962. In the first reply, it was clearly stated that the notification Ex. G was completely ignored and no action was taken thereunder. In the subsequent reply dated 15th January, 1964 the main stand has been taken on the basis of Ex. G. It is contended by learned Deputy Government Advocate that the first reply was filed under a mistaken notion of law and, therefore, the non-petitioners' second reply should not be rejected for that reason. We agree with learned Deputy Government Advocate to the extent that a mistake of law may be corrected and, therefore, the contention raised subsequently by him would not be thrown but if we come to the conclusion that the first reply was made only on account of some misunderstanding of the position of law.

12. It would now be proper to examine, in seriatim the various objections raised by the petitioners.

13. To begin with the first objection, the non-petitioners have not been able to show if any public notice of the substance of the notification under Section 4 (1) of the Act was caused to be given by the Collector at convenient places in the said locality. In the first reply filed on behalf of the non-petitioners, it was stated that the notice Ex. D, dt. 30th November, 1960 should be taken as the public notice under Section 4 (1). The learned Deputy Government Advocate has also advanced the same contention during the course of his arguments. We find it difficult to accept this argument, because the perusal of Ex. D clearly shows that it was a notice issued under Section 9 and not under Section 4 (1) of the Act. The language of this notice unequivocally shows that it was issued in order to invite claims for compensation from persons having interest in the land. Moreover, it was expressly stated at the end of this notice that it was issued under Section 9 of the Act.

14. It was also urged by the learned Deputy Government Advocate that the issue of the public notice of the substance of the notification was not mandatory and could not vitiate further proceedings. It may be observed that this contention is also not tenable. The language of Section 4 (1) shows that it casts a duty on the Collector to cause public notice of substance of the Government notification to be given at convenient places in the, locality where the land, which is sought to be acquired, is situated. Issue of the public notice is very necessary, so that those persons, who are interested in the land, which is sought to be acquired, may be able to file their objections under Section 5-A. It is also necessary to enable the employees of the Govt. to enter upon the land, make necessary survey and find out if it is suitable for the purpose for which it is sought to be acquired. It is only after such a public notice is issued that it becomes lawful for the officers to proceed tinder Section 4 (2). In the absence of such a notice they are likely to find themselves in difficult situation if their entry on the land is resisted by persons who are owners or occupiers of the land. In a case where persons interested in the land come to know of the notification and they file their objections within time and the objections are decided by the Government under Section 5-A, absence of a public notice may not be considered a fatal defect for vitiating further proceedings, but the same view cannot be taken in a case where persons interested in the land are unable to file their objections under Section 5-A on account of the absence of a public notice. In the present case also, the absence of a public notice would not have assumed importance if the objections filed by the petitioners on 3rd November, 1960 under Section 5-A were forwarded by the Collector to the Government and decided by the Government according to law. Here, we find that the Collector not only failed to comply with the provisions of Section 4 (1), but he also did not care to comply with the provisions of Section 5-A.

15. We may now take up the next objection and it may be observed that it was incorrect on the part of the non-petitioners to say that the objections Ex. C submitted on 3rd November; 1960 were time barred, because the non-petitioners were unable to show if the petitioners had received notice of the substance of the notification under Section 4 (i) more than 30 days before 3rd November, 1960.

16. The learned Deputy Government Advocate has not been able to show if the Collector gave to the petitioners an opportunity of being heard in person or by pleader in respect of the objections. It appears from Ex. C that the petitioners had urged that there was a good deal of open land lying barren on other sides of village Redi, that it could be used for the extension of habitation area, that it was not necessary to deprive the petitioners of their agricultural plots and that if their plots were acquired, they would be hit adversely. In view of these objections, it was necessary for the Collector to make an inquiry into them and to send his report to the Government together with the record of the proceedings and the petitioners' objections. If the Govt. had then given its decision, it would have been final. In Ramcharanlal v. State of Uttar Pradesh, AIR 1952 All 752, it was observed that --

'the provisions of Section 6 (3) that the declaration under Section 6 (i) shall, be conclusive evidence that the land is needed for a public purpose is based upon the assumption that the declaration has been made within jurisdiction after complying with the provisions of Section 5-A. But where the provisions of Section 5A, have not been complied with, the declaration made by the State Government under Section 6 is without jurisdiction and the conclusiveness provided for in Section 6 (3) does not attach to it.'

We are in respectful agreement with this observation. We are, therefore, of opinion that the objections raised by the petitioners about the non-compliance, of the provisions of Sections 4 (1) and 5-A of the Act by the non-petitioners are quite correct. It follows as a necessary corollary that the declaration Ex. F made by the Govt. under Section 6 of the Act was also invalid.

17. It now remains to examine the arguments of the learned Deputy Government Advocate with regard to the document Ex. G. We have already pointed out that in the first reply which was filed on behalf of the non-petitioners, it was submitted that since the declaration (Ex. F) under Section 6 of the Act was made earlier than the publication of the notification Ex. G, it was ignored and no action was taken. In the second reply, a completely different stand has been taken on behalf of the non-petitioners. It has now been urged that Ex. G was first published under Section 17 (4) and the declaration Ex. F was published subsequently, and, therefore, there was no necessity to comply with the provisions of Section 5-A as the entire proceedings were valid in law.

18. It is contended by the petitioners' learned counsel that Ex. G is not in accordance with Section 17 (4), because it does not indicate if there was any urgency for acquiring the land. It is pointed out that the notification was issued in Hindi and the words used were ^vR;ar vko';d* which, when translated into English, mean 'very necessary'. According to learned counsel, the words 'very necessary' were not equal to urgency and, therefore, Section 17 (4) does not come into play:

19. In reply, it is urged by the learned Deputy Govt. Advocate that the words ^vR;ar vko';d* Could also denote urgency, that the Government alone could decide the question of urgency and it was not justiciable. In support of his argument, he has referred to A. Natesa Asari v. State of Madras, AIR 1954 Mad 481.

20. We have given due consideration to this argument. We agree with the learned Deputy Government Advocate to the extent that a question whether an urgency exists or not, is a matter for the determination of the Govt. and it is not a matter for judicial review. In A. Natesa Asari AIR 1954 Mad 481, referred above, it was observed by the learned Judges of a Division Bench of the Madras High Court that

'whether an urgency exists or not is a matter solely for the determination of the Govt. and it is not a matter for judicial review.'

The same view has been followed in Harihara Prasad v. Jagannadham, (S) AIR 1955 Andh 184 and Iftjkhar Ahmed v. State of Madhya Pradesh, AIR 1961 Madh Pra. 140. It may be further observed that since the notification Ex. G was issued in Hindi, it would not be proper to lay much stress on the connotation of the words ^vR;ar vko';d* -

It is common knowledge that the vocabulary of legal terms in Hindi is not as extensive and precise as in English. The word ^vko';d* is, no doubt, ordinarily used in the sense of necessary and, therefore, strictly speaking, ^vR;ar vko';d*, may be translated as 'very necessary'. In English language., 'very necessary' would not be equivalent to urgency, but in Hindi, it cannot be said that the words ^vR;ar vko';d* could never have been used in the sense of urgency.

We do not, therefore, attach much importance to the so-called defect pointed out by learned counsel for the petitioners in the notification, but the land could not be acquired merely by this notification, unless it was followed by a declaration under Section 6. We do not agree with the contention of the learned Deputy Advocate that the declaration Ex. F should be taken to have been made subsequent to Ex. G, simply because it was published later on in the Gazette dated 3rd August, 1961. A penisal of Ex. F shows that this declaration was made on 3rd June, 1961, i.e., long before the notification Ex. G was prepared. It appears that when Ex. F was issued, the Government was not even aware of the urgency for acquiring the land. The mere fact that its publication Ex. F was delayed in the press would not mean that it was Issued after the notification Ex. G was made. There being no subsequent valid declaration under Section 6, the further proceedings, which were taken under Section 9 and which culminated in the award, were also invalid and, therefore, it seems proper to quash all of them.

21. Before parting with the case, it would not be out of place to observe that under the Constitution of India, all citizens have a fundamental right to acquire, hold and dispose of their property. The Land Acquisition' Act, no doubt, enables the Government to acquire their property if it is needed for purposes mentioned therein, but it is extremely necessary that the provisions of this Act should be strictly followed. Normally, every person, who has interest in the land, which is sought to be acquired, should have a notice of the notification which is issued under Section 4 (1), so that he may be able to file his objection, if there be any. He should also have an opportunity of being heard. The law requires that there should be a proper inquiry and then the decision upon his objections should be that of the Govt. and not of the officer inquiring into them. It is only after a decision regarding his objections is given, that a declaration under Section 6 of the Act should be made. In cases of urgency, special powers have been given under Sub-sections (1) and (4) of Section 17 of the Act. The question of urgency may not be justiciable, but the powers must be used only when there is urgency and they should not be used just to cover up the deficiencies, if any, left out by officers concerned under Section 4 (1) or Section 5-A. In the present case, we find that although a move about acquiring the petitioners' and had commenced as early as in 1955, it was dropped in January 1959. The question was again taken up towards the end of 1959 and the first notification under Section 4 (1) was published in August 1960. The petitioners presented their objections on 3rd November, 1960 but they were just ignored and a declaration under Section 6, was made on 3rd June 1961. It appears that the notification Ex. (G was then issued on 20th June, 1961 showing an urgency and this has given a handle to the petitioners to allege that it was made just to cover up the defects of procedure left out by the Collector under Section 5-A. Learned counsel has thus challenged the validity of Ex. G on the ground of mala fides also, but we have not considered it necessary to go into that question, because, as we have already pointed out above, there being no subsequent declaration under Section 6, Ex. G had no importance left and the further proceedings were, therefore, not valid.

22. The writ application is allowed and allthe proceedings subsequent to the issue of thenotification Ex. A under Section 4 (1) of the Actare hereby quashed. The petitioners will getRs. 50/- as costs.


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