Rajasthan High Court

Sonu Yadav And Ors vs State Industries Dep Ors on 17 November, 2021

Bench: Inderjeet Singh

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 16695/2012

1. Sonu Yadav S/o Late Shri Om Prakash, aged about 26 years,
R/o- Village Post-Salarpur, Tehsil- Tijara, Alwar (Raj.)-301018.
2. Bhupendra Yadav S/o Late Shri Om Prakash, aged about 19
years R/O- Village Post- Salarpur, Tehsil- Tijara, Alwar (Raj.)-
301018.
3. Indira Devi W/o Late Late Shri Om Prakash, aged about 19
years, R/o- Village Post-Salarpur, Tehsil- Tijara, Alwar (Raj.)-
301018.
4. Rajkumar S/o Shri Hemdut, aged about 34 years, R/o- Village
Post-     Salarpur,   Tehsil-Tijara,       Alwar         (Raj.)-301018,      (since
deceased), through its legal heirs:-
4/1. Smt. Sarita Devi W/o Late Shri Raj Kumar, aged about 34
years,
4/2. Deepak Yadav S/o Late Shri Raj Kumar, aged about 17
years, (Being minor through their mother)
4/3. Anu Kumari D/o Late Shri Raj Kumar, aged about 15 years,
(Being minor through their mother)


All R/o- Village Post- Salarpur, Tehsil-Tijara, Alwar (Raj.)-301018
                                                                    .....Petitioners
                                          Versus


1-   State    of   Rajasthan       through        the     Secretary,    Industries
Department, Government of Rajasthan, Secretariat, Jaipur.
2- Rajasthan State Industrial Development and Investment
Corporation (RIICO), Udyog Bhawan, Tilak Marg, C-Scheme,
Jaipur.
3- The Land Acquisition Officer, Rajasthan State Industrial
Development        and   Investment          Corporation          (RIICO),   Udyog
Bhawan, Tilak Marg, C-Scheme, Jaipur.
                                                                   ....Respondents

                                          (2 of 16)               [CW-16695/2012]



For Petitioner(s)         :     Mr. Anuroop Singhi.
                                Mr. Tarun Verma.
                                Mr. Devansh Sharma.
For Respondent(s)         :     Mr. R.P. Singh, AAG assisted by Mr.
                                Jaivardhan Singh Shekhawat & Mr.
                                Hemant Kothari.

Ms. Sheetal Mirdha, AAG assisted by Mr. Prateek Singh.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

17/11/2021

1. With the consent of both the parties the matter is heard

finally.

2. The prayer made by the petitioners in the present writ

petition reads as under:-

"It is therefore, most humbly prayed that this Hon'ble Court may be pleased to allow and accept this writ petition and pleased to issue an appropriate writ, order or direction in the nature thereof, thereby:-

i) quashing and setting-aside the award dated 03/08/2012 (Annexure-8) being contrary to law;

ii) declaring the notification dated 27/01/2009 under Section 4 and declaration dated 28/06/2010 under Section 6 of the Act of 1894 to be void ab-initio, illegal so far as it relates to the land of the petitioner;

iii) quashing and setting-aside the entire land acquisition proceedings in pursuance to the notification dated 27/01/2009, declaration dated 28/06/2010 and award dated 03/08/2012 and the land of the petitioner be left out from the acquisition;

iv) awarding any other appropriate order or direction which this Hon'ble Court, may deem just and proper in the facts and circumstances of the case, in favour of the petitioner.

v) awarding cost in favour of the petitioner."

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3. Brief facts of the case are that the respondents-State

initiated the acquisition proceedings for acquiring the land for

public purpose i.e. for extension of existing RIICO industrial area

and in this regard a notification under Section 4 of the Land

Acquisition Act, 1894 (hereinafter to be referred as 'Act of 1894')

was issued on 27.01.2009 which was duly published in the official

Gazette on 04.02.2009 and notification/circular in respect of the

local area was issued on 15.02.2009 in which land of petitioner's

Khasra No.1474, 1475, 1476, 1425, 1426 was also included,

publication of which was made in two daily newspapers on

02.07.2009. Thereafter, the petitioners submitted objections under

Section 5A of the Act of 1894 on 25.02.2010, which were duly

considered and decided by the Land Acquisition Officer vide order

dated 16.06.2010 and thereafter only the declaration under

Section 6 of the Act of 1894 was issued on 28.06.2010 and final

award was passed by the Land Acquisition Officer on 03.08.2012

including land of the petitioners.

4. Counsel for the petitioners submitted that the Land

Acquisition Officer has not considered the objections submitted by

the petitioners under Section 5A of the Act of 1894 in a right

perspective and wrongly decided the same without any cogent

reason and non-application of mind. Counsel further submitted

that the discretion exercised by the respondents is discriminatory

as some part of the land has been left out from acquisition by the

respondents while concluding the process of land acquisition.

Counsel further submitted that even after acquiring land of the

petitioners, reasonable compensation in lieu thereof has not been

paid/deposited by the respondents. Counsel further submitted

that according to the tentative plan/map, land of the petitioners is

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situated at the extreme corner and not in the midst, therefore the

respondents ought not to have acquired the land of the petitioners

and apart from it, even if that is acquired the compensation in

cash should have been paid to the khatedars of the land holders.

5. In support of his contentions counsel relied upon the

judgments passed by the Hon'ble Supreme Court in the matter of

Beml Employees House Building Cooperative Society Ltd.

Vs. State of Karnataka and Ors. reported in (2005) 9

Supreme Court Cases 248 where in para No.7, it has been held

as under:-

"7. It was urged by the learned counsel for the appellant that whatever be the recommendations of the Land Acquisition Officer in his report under Section 5A, they were merely recommendations and the State Government was not bound to accept them. The State Government had wide discretion to accept or reject the said report under Section 5A of the Act and take independent decision to continue or discontinue the acquisition proceedings in respect of any particular land proposed to be acquired. Wide, the discretion may be; but not wild. All exercise of statutory discretion must be based on reasonable grounds and cannot lapse into arbitrariness or caprice which is anathema to the Rule of Law envisaged in Article 14 of the Constitution. The facts placed on record do not indicate that the case of the fifth Respondent was similar, if not identical, to that of the other land owners, whose lands were dropped from the acquisition proceedings. Neither the appellant, nor the State Government has been able to show us any rational distinction between the case of the fifth Respondent and the cases of the other land owners, whose lands were excluded from the acquisition. When this is so, it appears to us that the vice of hostile discrimination infects and vitiates the decision taken by the State Government to continue with the acquisition against the fifth Respondent's land."

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6. Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Radhy Shyam (Dead)

through Lrs, & Ors Vs. State of Uttar Pradesh & Ors.

reported in (2011) 5 SCC 553 where in para 87, it has been held

as under:-

"87. The argument of the learned senior counsel for the Respondents that the Court may not annul the impugned acquisition because land of other villages had already been acquired and other land owners of village Makora have not come forward to challenge the acquisition of their land cannot be entertained and the Court cannot refuse to protect the legal and constitutional rights of the Appellants' merely because the Ors. have not come forward to challenge the illegitimate exercise of power by the State Government. It is quite possible that Ors. may have, due to sheer poverty, ignorance and similar handicaps not been able to avail legal remedies for protection of their rights, but that cannot be made basis to deny what is due to the Appellants."

7. Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Lajja Ram & Ors. Vs.

Union Territory, Chandigarh & Ors. reported in (2013) 11

Supreme Court Cases 235 where in para Nos.19 to 23, it has

been held as under:-

"19. Before we advert to the aforesaid question, it is appropriate that we briefly notice Section 5-A of the Act which reads as under:

5A. Hearing of objections-(1) Any person interested in any land which has been notified under Section 4, Sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in

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the locality, as the case may be.

(2) Every objection under Sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, Sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final.

(3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."

Sub-section (2) of Section 5-A envisages the rule of audi alteram partem and makes it sine qua non to the acquisition proceedings under the Act. It mandates the LAO to first provide an opportunity of hearing to the objector(s) in respect of their objections to the acquisition of lands notified under Section 4(1) of the Act. The LAO or the Collector may also conduct a further enquiry in this regard, if he deems it necessary, and thereafter decide upon the objections raised by such objector(s) and submit his recommendations to the State Government in the form of a report, on the basis of which the State Government is to formulate its opinion in respect of acquisition of lands notified under Section 4(1) of the Act and issue appropriate notification under Section 6 of the Act. The purpose is to afford an opportunity of making representation to the aggrieved person before any order, which may adversely affect his interest in any immovable property, may be passed by the LAO and subsequent notification be issued by the State Government.

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20. The said purpose has been noticed by this Court in State of Punjab v. Gurdial Singh wherein this Court has observed as under: (1980) 2 SCC 471 para 16),

"16... it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre- emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons."

21. Further, this Court in Raghbir Singh Sehrawat v. State of Haryana has reflected upon the purpose of inclusion of principles of natural justice in the mandatory provisions of Section 5-A of the Act and their strict compliance by the LAO in the following words: (SCC p.805, paras 39-40) "39...it is necessary to remember that the rules of natural justice have been ingrained in the scheme of Section 5-A with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. He can also point out that the land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilised for execution of the particular project or scheme.

40. Though it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief

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reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons.

22. This Court in Munshi Singh v. Union of India MANU/SC/0517/1972 : (1973) 2 SCC 337, has highlighted the importance of the rule of audi alteram partem embodied in Section 5-A of the Act in the following words:(SCC p.342, para 7) "7. Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. We may refer to the observation of this Court in Nandeshwar Prasad v. State of U.P. that the right to file objections under Section 5-A is a substantial right when a person's property is being threatened with acquisition and that right cannot be taken away as if by a side wind. Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an objector an opportunity of being heard. After hearing all objections and making further inquiry he is to make a report to the appropriate Government containing his recommendation on the objections. The decision of the appropriate Government on the objections is then final. The declaration under Section 6 has to be made after the appropriate Government is satisfied, on a consideration of the report, if any, made by the Collector under Section 5-A(2). The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. (Emphasis supplied)

23. This Court in Surinder Singh Brar v. Union of India, while analyzing the legality of the notification issued under Section 6 of the Act in the light of principles of natural justice as envisaged in the mandatory provisions of the Act under Sections 5-A and 6, has observed that the opportunity of hearing as envisaged under

(9 of 16) [CW-16695/2012]

Section 5-A(20) must not be denuded to mere formality and the LAO/Collector must take into consideration the objections raised by the objectors and record reasons in his report as to why or why not the lands requires to be acquired for public purpose. This Court has emphasized that it is the reasons recorded by the LAO/Collector, after providing appropriate hearing to the objectors that contribute to the decision reached by the State authorities in issuing the notification under Section 6 of the Act. The relevant paragraph is extracted hereunder: (SCC pp.457-58, para 84)

"84. What needs to be emphasised is that hearing required to be given under Section 5-A(2) to a person who is sought to be deprived of his land and who has filed objections under Section 5-A(1) must be effective and not an empty formality. The Collector who is enjoined with the task of hearing the objectors has the freedom of making further enquiry as he may think necessary. In either eventuality, he has to make report in respect of the land notified under Section 4(1) or make different reports in respect of different parcels of such land to the appropriate Government containing his recommendations on the objections and submit the same to the appropriate Government along with the record of proceedings held by him for the latter's decision. The appropriate Government is obliged to consider the report, if any, made under Section 5-A(2) and then record its satisfaction that the particular land is needed for a public purpose. This exercise culminates into making a declaration that the land is needed for a public purpose and the declaration is to be signed by a Secretary to the Government or some other officer duly authorized to certify its orders. The formation of opinion on the issue of need of land for a public purpose and suitability thereof is sine qua non for issue of a declaration under Section 6(1). Any violation of the substantive right of the landowners and/or other interested persons to file objections or denial of opportunity of personal hearing to the objector(s) vitiates the recommendations made by the Collector and the decision

(10 of 16) [CW-16695/2012]

taken by the appropriate Government on such recommendations. The recommendations made by the Collector without duly considering the objections filed under Section 5-A(1) and submissions made at the hearing given under Section 5-A(2) or failure of the appropriate Government to take objective decision on such objections in the light of the recommendations made by the Collector will denude the decision of the appropriate Government of statutory finality. To put it differently, the satisfaction recorded by the appropriate Government that the particular land is needed for a public purpose and the declaration made under Section 6(1) will be devoid of legal sanctity if statutorily engrafted procedural safeguards are not adhered to by the authorities concerned or there is violation of the principles of natural justice. The cases before us are illustrative of flagrant violation of the mandate of Sections 5-A(2) and 6(1)." (Emphasis supplied)"

8. Counsels for the respondents have opposed the writ petition

and submitted that the petitioners' objections under Section 5A of

the Act of 1894 were submitted by the petitioners beyond the

period of 30 days. Counsel further submitted that in the objections

submitted by the petitioners an alternative prayer was made that

the residential plot be given to them in lieu of their acquired land.

Counsel further submitted that the land has been acquired,

including that of the petitioners, for public purpose i.e. for

extension of existing RIICO industrial area and further the

petitioners are estopped from challenging the acquisition

proceedings after issuance of the award.

9. In support of their contentions counsels relied upon the

judgment passed by the Hon'ble Supreme Court in the matter of

Aflatoon & Ors. Vs. Lt. Governor of Delhi & Ors. reported in

(11 of 16) [CW-16695/2012]

(1975) 4 Supreme Court Cases 285 where in para No.11 it has

been held as under:-

11. Nor do we think that the petitioners in the writ petitions should. be allowed to raise this plea in view of their conduct in not challenging the validity of the notification even after the publication of the declaration under Section 6 in 1966. Of the two writ petitions, one is filed by one of the appellants. There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners (see Tilokchand Motichand and Ors. v. H. B. Munshi and Anr.; and Rabindranath Base and Ors. v. Union of India)

10. They further relied upon the judgment passed by the Hon'ble

Supreme Court in the matter of Municipal Council,

Ahmednagar and Anr. Vs. Shah Hyder Beig & Ors. reported in

(2000) 2 Supreme Court Cases 48 where in para Nos.14 & 17

it has been held as under:-

"14. The High Court has thus misplaced the factual details and misread the same.

It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a

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civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction, has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, 'delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of school playground and roads in the development plan and by reason therefore, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above.

17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of recent cases Padma and Ors. v. Dy Secretary to the Govt. of T.N. and Ors.) this Court observed as below: (SCC p.628 para 4) "4The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, 1894 (for short "the Act") in GOR No. 1392 Industries dated 17.10.1962, total extent of 6 areas 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Residua by Tvl. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 30.4.1964. Pursuant to the agreement executed by the company, it was handed

(13 of 16) [CW-16695/2012]

over to Tvl. Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd. It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs No. 816. Industries dated 24.3.1971 in favour of another subsidiary company, Shri Rama Vilas Service Ltd., the 5th respondent which is also another subsidiary of the company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms

Industries dated 10.5.1985. In GOMs 546 Industries dated 30.3.86, the same came to be approved of. Then the appellants challenged the original GOMs No. 1392 Industries dated 17.10.62 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed.

11. They further relied upon the judgment passed by the Hon'ble

Supreme Court in the matter of Talson Real Estate (P) Ltd. Vs.

State of Maharashtra & Ors. reported in (2007) 13 Supreme

Court Cases 186 where in para-16 it has been held as under:-

"16. The provisions of Section 5A of the Act are attracted only when a person interested in any land which has been notified under Section 4(1) makes objection in writing to the Collector within 30 days from the date of the publication of the notification. The period of 30 days will have to be counted from the last day of the publication of the notification under Section 4 of the Act which, in the present case, was admittedly published in the

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Official Gazette on 17.04.1997 and in two daily newspapers on the same day. The substance of such notification was notified on the site on 30.04.1997. The appellant- company did not choose to file objections under Section 5A of the Act against the acquisition of its land bearing Survey No. 23/2/1, admeasuring 1 Hectare 82 ares."

12. They further relied upon the judgment passed by the Co-

ordinate Bench of this court in the matter of Munshi Ram Vs.

State of Rajasthan & Ors. (S.B. Civil Writ Petition

No.18751/2017) wherein pertaining to the same acquisition

proceedings, the writ petition was dismissed by the Co-ordinate

Bench of this court vide order dated 25.01.2018 wherein, it has

been held as under:-

"The third issue is in reference to order passed under Section 5A of the Act of 1894. The reference of item Nos.17 and 18 of the order has been given to show contradiction or discrimination in decision of the Land Acquisition Officer. It is true that while dealing with the issue at item Nos.17 and 18, contradictory recommendation has been made by the Land Acquisition Officer. In Para 17, recommendation is to exclude certain part of the land from acquisition and in contradiction, issue at item No.18 was decided. The fact, however, remains that final decision on it is to be taken by the Government while issuing declaration under Sections 6 and therein, no part of land has been excluded. It is admitted that land in dispute has been acquired for industrial area. It cannot be developed with patches of residential colonies in between, therefore, the Government took a decision not to exclude any area thus even if discriminatory recommendation was made by the Land Acquisition Officer in favour of the petitioner himself, it does not affect for the reason that declaration under Section 6 is without exclusion of area to avoid discrimination.

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At this stage, learned counsel for petitioner submits that when RIICO itself desired to exclude part of the land then Government should not have issued declaration under Section 6 of the Act of 1894 for the entire land. The argument aforesaid has been considered in reference to Section 6 of the Act of 1894. The final decision on the issue can be taken by the Government and not by the agency for which acquisition of land is to be made. The recommendations of the Land Acquisition Officer and even of the agency, for which land is to be acquired, are not treated to be as final. The Government is given power to take a final decision therein. Accordingly, I do not find any ground to cause interference in the acquisition on the issues raised by the petitioner.

Accordingly, finding no merit in the writ petition, it is dismissed."

13. Counsels further submitted that against the order

25.01.2018 passed in S.B. Civil Writ Petition No.18751/2017,

D.B. Special Appeal (Writ) No.420/2018 was filed and that too was

dismissed by the Division Bench of this court vide order dated

18.01.2019 wherein, it has been held as under:-

"1. The appeal is dismissed as not pressed.

2. It is clarified that all grounds available to the appellant to challenge the award which has been passed subsequent to the decision of the learned Single Judge impugned in the appeal can be raised by the appellant."

14. Heard counsel for the parties and perused the record.

15. This writ petition filed by the petitioners deserves to be

dismissed for the reasons; firstly, admittedly, the objections under

Section 5A of the Act of 1894 were submitted by the petitioners

beyond the period of Limitation i.e. after 30 days of publication of

notification under Section 4 of the Act of 1894; secondly, the land

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in dispute is required for public purpose i.e. for extension of

existing RIICO Industrial Area; thirdly, even if some part of the

land is left out by the State Government from acquisition then the

petitioners cannot claim for the same treatment as it is for the

State Government to decide which land is suitable for the public