Rajasthan High Court - Jodhpur
Gattani Resorts P Ltd. And Anr vs State And Ors on 30 May, 2024
Bench: Pushpendra Singh Bhati, Yogendra Kumar Purohit
[2024:RJ-JD:20834-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 296/2009
1. Gattani Resorts (P) Ltd. A company registered under Indian
Companies Act, 1956 having its Head Office at Main Road,
Subhash Nagar, Udaipur.
2. Shri Krishna Gopal Gattani s/o Late Sh. G.D. Gattani, R/o 380,
Ashok Nagar, Udaipur, Director of Gattani Resorts (P) Ltd.
Udaipur.
----Appellant
Versus
1. State of Rajasthan through the Secretary to the Government
Department of Revenue, Secretariat, Jaipur.
2. Land Acquisition Officer, Udaipur.
3. Shri Mohan Lal Sukhadia University, Udaipur.
----Respondent
Connected With
D.B. Spl. Appl. Writ No. 697/2007
Kalyan Singh Chordia And Ors.
----Appellant
Versus
State And Ors
----Respondent
D.B. Spl. Appl. Writ No. 1038/2007
Mohan Lal Sukhadia University
----Appellant
Versus
Smt. Neena Saboo And Ors.
----Respondent
D.B. Spl. Appl. Writ No. 176/2008
Mohan Lal Sukhadia University
----Appellant
Versus
Ashok Kumar Mehta And Ors.
----Respondent
D.B. Spl. Appl. Writ No. 747/2008
Mohan Lal Sukhadia University
----Appellant
Versus
(Downloaded on 30/05/2024 at 09:08:44 PM)
[2024:RJ-JD:20834-DB] (2 of 17) [SAW-296/2009]
Bhanwar Lal And Ors.
----Respondent
D.B. Spl. Appl. Writ No. 901/2008
Smt.neena Saboo
----Appellant
Versus
State And Ors
----Respondent
D.B. Spl. Appl. Writ No. 51/2009
Mohan Lal Sukhadia University,
----Appellant
Versus
Arvind Singh Mewar And Ors.
----Respondent
D.B. Spl. Appl. Writ No. 170/2009
Bhanwarlal And Ors
----Appellant
Versus
State And Ors
----Respondent
D.B. Spl. Appl. Writ No. 1995/2011
Mohan Lal Sukhadia University
----Appellant
Versus
Gattani Resorts Pvt.ltd. And Ors.
----Respondent
For Appellant(s) : Mr. R.N. Mathur Sr. Advocate assisted
by Mr. Hemant Ballani
Mr. Vikas Balia Sr. Advocate assisted
by Mr. Sachin Saraswat
Mr. Deelip Kawadia a/w Ms. Aditi
Moad
Ms. Renuka Bohra
For Respondent(s) : Mr. Rajesh Panwar Sr. Advocate &
AAG assisted by Mr. Vinay Soni
Mr. Manish Patel, AAG
Mr. Manish Shishodia Sr. Advocate
assisted by Mr. Harshvardhan Singh
Mr. Ankur Mathur
(Downloaded on 30/05/2024 at 09:08:44 PM)
[2024:RJ-JD:20834-DB] (3 of 17) [SAW-296/2009]
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT
Judgment
Reserved on 07/05/2024
Pronounced on 30/05/2024
Per Dr. Pushpendra Singh Bhati, J:
1. All the instant special appeals arise out of a common order
dated 10.04.2007 passed by the learned Single Judge of this
Hon'ble Court in S.B. Civil Writ Petition No. 4929/1994 & other
connected petitions, and therefore, the present appeals have been
heard together and are being decided by this common judgment.
1.1. For the sake of brevity and convenience, the facts, as
pleaded in one of the Special Appeals being D.B. Spl. Appl. Writ
No. 296/2009, are being taken for the present analogous
adjudication.
1.2. Since in the above-numbered DBSAW No.296/2009, which
has been preferred against the common impugned judgment, so
far it operates, in the aforementioned S.B. Civil Writ Petition No.
4929/1994, the Mohan Lal Sukhadia University has been arrayed
as a party respondent, therefore, though the University also has
preferred some of the above-numbered special appeals, the
'Mohan Lal Sukhadia University' shall henceforth be referred to as
'respondent-University', in the present judgment.
1.3. These appeals have been preferred claiming, in sum and
substance, the following reliefs:
[2024:RJ-JD:20834-DB] (4 of 17) [SAW-296/2009]
SAW No. 296/2009 (preferred by the Gattani Resorts (P)
Ltd.):
"It is, therefore, prayed that,
(i) this appeal may kindly be allowed. The judgment passed
by the learned Single Judge dated 10.4.2007 may kindly be
set aside and the writ petition filed by the petitioner may
kindly be allowed with cost throughout.
(ii) Any other relief in the facts and circumstances of the
case which this Hon'ble Court deems fit may kindly be
granted to the appellant.
(iii) Cost be awarded in favour of the appellants."
SAW No. 1995/2011 (preferred by the University):
"It is, therefore, most respectfully prayed that the
a) This Special Appeal may kindly be allowed with cost
throughout and
b) Impugned order/judgement dated 10/04/2007 may
kindly be quashed and set aside; and writ petition filed by
the petitioner may kindly be dismissed; and
c) Any other relief, direction that Hon'ble Court may feel
just and proper in facts and circumstances of the case in
favor of appellants, may kindly be passed."
2. Brief facts as placed before this Court by Mr. R.N. Mathur,
learned Senior Counsel, assisted by Mr. Hemant Ballani; Mr.Vikas
Balia, learned Senior Counsel assisted by Mr. Sachin Saraswat;
Mr.Deelip Kawadia with Ms. Aditi Moad; and Ms. Renuka Bohra,
appearing on behalf of the appellants, are that a notification under
Section 4 (1) of the Rajasthan Land Acquisition Act, 1953
(hereinafter referred to as 'Act of 1953') was issued on
03.10.1981, in order to acquire land for expansion of the
respondent-University, whereafter objections were filed by the
land-holders covered under the said notification, in terms of
Section 5A of the Act of 1953 in the year of 1982, and report
dated 28.05.1982 was thereafter forwarded to the State
Government and subsequently, a notification under Section 6 read
[2024:RJ-JD:20834-DB] (5 of 17) [SAW-296/2009]
with Section 17 (4) of the Act of 1953 was issued on
19/24.02.1982 by the State Government, while considering the
report of the Land Acquisition Officer which was not published in
the official gazette.
2.1. However, before publication of the above-said notification, a
writ petition being SBCWP No. 255/1982 came to be filed against
the aforesaid notification issued under Section 4 (1) of the Act of
1953, and the same was dismissed vide order dated 03.11.1993,
being premature, since the declaration under Section 6 had yet to
be made. During pendency of the said writ petition, stay order
was passed on 02.03.1982, resultantly, the acquisition
proceedings remained pending.
2.2. During pendency of the aforementioned writ petition, vide
Land Acquisition (Amendment) Act, 1984, an amendment has
been incorporated in the Land Acquisition Act, 1894 (hereinafter
referred to as 'Act of 1894') was brought into force, and the Act of
1953 came to be repealed thereby; thereafter, the Land
Acquisition (Rajasthan Amendment) Act, 1987 (hereinafter
referred to as 'Act of 1987') came into force wherein a new
Section 56 was added.
2.3. The acquisition proceedings again came to be initiated a
fresh notification under Sections 6 & 17(4) of the Act of 1894 was
issued on 16.09.1994 and published in official gazette on
17.09.1994; however, a new notification came to be issued on
29.09.1994 as the Act of 1953 had come to be repealed, and such
notification was published under the Act of 1894 in the Rajasthan
Gazette Extraordinary dated 30.09.1994. As per the contentions of
[2024:RJ-JD:20834-DB] (6 of 17) [SAW-296/2009]
the writ petitioners, the State Government failed to issue the
required notification within a period of one year and a writ petition
bearing SBCWP No. 4929 of 1994 (Gattani Resorts (P) Ltd. & Anr.
Vs. State of Rajasthan & Ors.) and other connected matters, came
to be preferred before this Hon'ble Court.
2.4. Subsequently, vide the impugned order dated 10.04.2007,
the writ bearing SBCWP No. 4929 of 1994 and other connected
matters, came to be partly allowed.
2.5. Aggrieved of the order dated 10.04.2007 passed by the
learned Single Judge of this Hon'ble Court, the writ petitioners and
respondent-University preferred the above said appeals.
3. Learned Senior Counsel for the appellants raised the
following contentions with regard to the present controversy:
i) It was submitted that the notification under Section 6 read
with Section 17(4) of the Act of 1894 had lapsed after the coming
into force of the Land Acquisition (Rajasthan Amendment) Act,
1987 (hereinafter referred as 'Act of 1987')- an Act further to
amend the Act of 1894 in its application to the State of Rajasthan,
wherein a new Section 56 was added, which lays down provisions
consequential to the extension of this Act to the State of
Rajasthan and the said Section 56 (4) clearly provided that the
declaration had to be made within a period of one year;
furthermore the said Section 56 (4) nowhere provided for
exclusion of stay period; however even after removing the time
where the writ proceedings were pending and the interim order
was operating, the above said notification in question had been
[2024:RJ-JD:20834-DB] (7 of 17) [SAW-296/2009]
issued after a lapse of the period of one year, thus the same was
in absolute contravention of the relevant provisions of law.
ii) It was also submitted that Section 17 (4) of the Act of 1894
which provides for Special powers in cases of urgency, had already
been dealt with by the learned Single Bench of this Hon'ble Court
in the impugned order and it was found that the respondents had
not clarified with regard to urgency required for acquisition of land
in question.
iii) It was further submitted that the notification issued under
Section 4 of the Act of 1953 dated 30.10.1981 clearly stated that
there were mere chances of requirement of land for the
respondent-University, thus the requirement for land is vague in
nature.
iv) Through the application for taking subsequent developments
on record, it was further submitted that for the land acquired for
the respondent-University, compensation will have to be paid to
the writ petitioners, however currently the respondent-University
did not even have funds to pay salary/pension/PF of its employees
and to discharge this liability, the respondent-University was
selling land(s) available for commercial and residential purposes.
v) It was further submitted that the entire purpose for acquiring
the land had been frustrated, given the fact that a new Agriculture
University had been set up in Bikaner in 1987, and thus,
bifurcation of the respondent-University in question had taken
place, resultantly, the acquisition/requirement of the land in
question no more survives.
[2024:RJ-JD:20834-DB] (8 of 17) [SAW-296/2009]
vi) Learned Senior Counsel had placed reliance on the judgment
rendered by the Hon'ble Apex Court in the case of Union of India
& Ors. Vs. Krishan Lal Arneja & Ors. (2004) 8 SCC 453
particularly para 35 of the said judgment, which reads as under:
"35. The alternative argument urged on behalf of the
appellants that if the impugned notification suffers from
infirmity in relation to invoking urgency clause, it can be
quashed only to the extent of invoking the aid of Section 17
and the said notification can be sustained confining it to
Section 4 of the Act, cannot be accepted. Otherwise, the
same common notification stands quashed in respect of the
few parties as in the cases of Banwari Lal and Shakuntala
Gupta and it stands sustained in respect of others i.e.
respondents in these appeals leading to anomalous
situation. Added to this, if the argument, as advanced on
behalf of the Union, is accepted, the notification under
Section 17 of the Act invoking urgency clause would stand
quashed but the landowner, would nonetheless be deprived
of the possession of the property as also payment of 80% of
compensation under Section 17(3A) of the Act. Such an
unjust result cannot be allowed to happen by quashing the
notification in part only to the extent of Section 17 of the Act
and maintaining it for the purpose of Section 4 of the Act.
Thus, having regard to the facts and circumstances brought
on record in these appeals, it is not possible to accept this
argument particularly when the very foundation of invoking
Section 17 was invalid and unjustified as upheld by this
Court in Banwari Lal and Shakuntala Gupta."
vii) It was also submitted that once the urgency as proposed
under Section 17 of the Act of 1894 goes away then a fresh
acquisition has to take place.
viii) It was further submitted that no award had been passed as
per the provisions of the Act of 1894.
[2024:RJ-JD:20834-DB] (9 of 17) [SAW-296/2009]
4. On the other hand, learned Senior Counsel and Additional
Advocate General appearing on behalf of the respondents No.1 &
2, while opposing the aforesaid submissions made on behalf of the
appellants, submitted that the learned Single Judge of this Hon'ble
Court had not quashed the notification issued under Section 4 of
the Act of 1953, instead partly allowed the writ petition vide the
impugned order, whereby the matter was remanded back to the
Land Acquisition Officer to decide the same afresh qua the
objections.
5. It was further submitted that as per the additional affidavit
of Tehsildar, Girwa, District Udaipur, after the order dated
10.04.2007, the acquisition proceedings were again initiated and
the Sub Divisional Officer, Girwa considered the objections and
filed a report vide letter dated 01.08.2007 before the District
Collector, Udaipur, whereafter the District Collector vide its letter
dated 02.08.2007 recommended for issuance of notice for
acquiring the land ad-measuring 14.5900 hectare of four rakba of
Tehsil Girwa of Champa Bagh and Niranjani Akhada for the
development of Mohan Lal Sukhadiya University, Udaipur.
5.1. It was also submitted that the land ad-measuring 0.5400
hectare of Niranjani Akhada was without dispute, and thus,
acquisition of the said land had already been completed, however
due to litigation for land ad-measuring 14.0500 hectare of
Champa Bagh, the acquisition proceedings in regard to the said
piece of land could not be completed and no notification under
Sections 6 & 17 of the Act of 1894 was issued and no award was
passed.
[2024:RJ-JD:20834-DB] (10 of 17) [SAW-296/2009]
5.2. It was further submitted that Araji no.559 & 560 had been
entered in the name of Palace House Hold, and buildings have
been constructed on the same, whereas Araji No. 555 & 556 had
been entered in the name of individual khatedars and people are
residing on the same.
6. Learned counsel for the respondent-University submitted
that the land in question was sought to be acquired for further
development of the respondent-University, as such the University
is an institution for imparting higher education and for furthering
pursuing of research in all branches of learning, thus the
development of the University is for development of higher studies
and for the benefit of public at large. It was further submitted that
in the given circumstances, the purpose of the acquisition in
question is still in existence.
6.1. It was also submitted that in pursuance of the impugned
order passed by the learned Single Judge, the objections were not
received within the stipulated time, and only the submissions of
the land having sold/transferred were brought on record.
6.2. It was further submitted that the land acquisition
proceedings have already delayed, as the same has been pending
since 1982, resulting into escalation in the cost of the project of
development and expansion of the respondent-University. In
furtherance, the respondent-University has already deposited the
requisite amount with the land acquisition officer, against the
acquisition of the land in question. Thus, in such circumstances,
the learned Single Judge was not justified in quashing the
notification issued under Section 17(4) of the Act of 1894.
[2024:RJ-JD:20834-DB] (11 of 17) [SAW-296/2009]
6.3. It was also submitted that the there was no delay in issuance
of the declaration under Section 6 of the Act of 1894, as the stay
order was operating on any further proceedings in SBCWP No.
255/1982, and the said writ petition was decided in the year 1993,
thus such declaration could not have been been issued, and
hence, in accordance with Section 56 (4) of the Act of 1987, the
period for issuing the declaration was to be computed from the
date on which the writ bearing SBCWP No. 255/1982 was decided.
7. Heard learned counsel for the parties as well as perused the
record of the case alongwith the judgments cited at the Bar.
8. This Court observes that a notification was issued on
03.10.1981 under Section 4 of the Act of 1953 for acquisition of
land with the purpose of expanding the respondent-University, in
pursuance of the same, objections Section 5A were submitted in
the year 1982 and report dated 28.05.1982 was accordingly
forwarded to the State Government recommending acquisition of
the land in question and the notification under Section 6 read with
Section 17 (4) came to be issued on 19/24.02.1982; however, the
same was never put in the Official Gazette, whereafter a writ
petition bearing SBCWP No. 255/1982 came to be preferred
against the notification under Section 4 of the Act of 1953 and the
said writ petition was dismissed on 03.11.1993, as being
premature.
8.1. The period, during which the proceedings remained pending,
an amendment was incorporated in the Land Acquisition Act, 1894
by amendment of 1984 repealing the Act of 1953, whereafter the
[2024:RJ-JD:20834-DB] (12 of 17) [SAW-296/2009]
Land Acquisition (Rajasthan Amendment) Act, 1987 came into
force wherein a new Section 56 was added.
8.2. Thereafter, the notification under Section 6 read with Section
17 (4) of the Act of 1894 was issued on 29.09.1994 and the same
was published in the Official Gazette on 30.09.1994; the said
notification came to be challenged by preferring writ petitions.
While partly allowing the said writ petition(s) vide the impugned
order dated 10.04.2007, the learned Single Judge observed thus:
"The net result of the aforesaid discussion is, that the
writ petition is partly allowed, and the notification dated
29.9.94, or for that matter dated 16.9.94, so far as they
relate to the lands, belonging to or claimed by the
petitioners, in this bunch of writ petitions are concerned,
cannot be sustained, and is quashed, only to that limited
extent.
At the same time, since even this part of the
notification has been quashed, only on account of invoking
powers under Section 17 having not been sustained, I think
it appropriate, that the petitioners only should be given an
opportunity to raise objections, and hearing thereon.
Accordingly, while quashing the above part of the
declarations, the matter is sent back to the S.D.O., Girwa,
District Udaipur, with a direction to hear the petitioners only
(obviously or their counsel) and receive the objections, if
they so like to make, and after considering those objections,
and hearing the petitioners on them, submit a fresh report
under Section 5A, by considering the matter objectively and
dispassionately. For the purpose of submitting objections
and hearing, the petitioners are directed to appear before
the learned S.D.O., Girwa, District Udaipur on 7 th of May
2007. It is made clear that no further notice would be
required to be given to any of the petitioners. Obviously,
the State Government would thereafter take appropriate
decision on the report so submitted, dispassionately and
objectively. It is also clarified, that if any of the
[2024:RJ-JD:20834-DB] (13 of 17) [SAW-296/2009]
petitioner/petitioners fail to appear on the aforesaid date,
before the aforesaid officer, in that event, the writ petition
with respect to the land of that particular petitioner will be
deemed to have been dismissed. The parties are left to bear
their own costs."
9. This Court further observes that SBCWP no. 255/1982 came
to be decided on 03.11.1993; during pending of the said writ
petition, an interim order was in currency till 03.11.1993,
whereafter the notification under Section 6 read with Section 17
came to be issued on 29.09.1994, thus after excluding the period
during which stay order was operating, no delay can be attributed
to the respondent-State in issuance of the notification dated
29.09.1994 on the basis of the newly added Section 56 (4) of the
Act of 1987. Relevant portion of the said Section 56 (4) is
reproduced as hereunder:
". . . . .In a proceeding pending on the date of
commencement of the Land Acquisition (Rajasthan
Amendment) Act, 1987, such period or periods shall be
deemed to have been extended upto, and the declaration or
the award, as the case may be shall be made within, one
year and two year respectively after such commencement. "
10. This Court also observes that the notification under Section
of 4 of the Act of 1953 was issued in the year 1981, without
stating any urgency as per Section 17(4) of the said Act;
whereafter, the objections were raised by the concerned parties
under Section 5A of the Act of 1953 in the year 1982. However,
after completion of the proceedings under writ petition bearing
SBCWP no. 255/1982, in the year 1994, the respondent-State
invoked the power under Section 17 (4) of the Act of 1894 stating
[2024:RJ-JD:20834-DB] (14 of 17) [SAW-296/2009]
urgency to acquire the land in question, which, in the given
circumstances, was not justified, more particularly, in light of the
fact that the invocation/applicability of both the said provisions of
law, that too, simultaneously, is not legally permissible.
10.1. That being so, the learned Single Judge vide the impugned
order dated 10.04.2007, had rightly quashed the notification
under Section 17 (4) of the Act of 1894, in the manner so
indicated in the said order.
11. This Court further observes that the judgment rendered by
the Hon'ble Apex Court in the case of Union of India and Ors.
Vs. Krishan Lal Arneia and Ors. (supra) deals with the
invocation of the urgency clause as provided under Section 17 of
the Act of 1894 wherein the notification under Section 4 along
with Section 17 of the Act of 1894 was issued on 06.03.1987,
whereas in the present case, the notification under Section 4 of
the Act of 1953 was issued on 03.10.1981, objections under
Section 5A were submitted and report was made on the same in
the year 1982 and notification under Section 17 of the Act of 1894
was issued in the year 1994, whereafter vide the impugned order,
the learned Single Judge quashed the urgency clause under
Section 17 (4) only to the extent of the petitioners therein and
permitted them to raise objections before the concerned authority,
as has already been discussed in the above paragraph, thus the
case cited on behalf of the appellants does not render assistance
to them in the present matters.
12. This Court also observes that as per the report of the Land
Acquisition Officer brought on record by the learned Additional
[2024:RJ-JD:20834-DB] (15 of 17) [SAW-296/2009]
Advocate General on 04.11.2019 in pursuance of order of the
learned Single Judge dated 10.04.2007, the acquisition
proceedings were again initiated and the Sub-Divisional Officer,
Girwa while considering the objections filed, forwarded its report
to the District Collector, Udaipur, who in turn, recommended for
issuance of acquiring the total land ad-measuring 14.5900 hectare
of four rakba of Tehsil Girwa of Champa Bagh and Niranjani
Akhada for the development of the respondent-University.
13. This Court has been apprised by the learned counsel for the
respondent-University as to the requirement for the development
of the respondent-University and that the said need for acquiring
the land is still in existence.
14. This Court is also conscious that interim orders are operating
in some of the present appeals, including the interim order dated
05.03.2008 passed in D.B. Spl. Appl. Writ No.697/2007, which is
reproduced as hereunder:
"Heard learned counsel for the appellant as nobody
appeared on behalf of the respondents today and nobody
appeared on behalf of the respondents on28.02.2008.
In view of the judgment of the Hon'ble Apex Court
delivered in the case of Union of India & Ors. Vs. Krishan
Lal Arneja & Ors. reported in 2004 (8) SCC 453, further
proceedings in pursuance of the impugned order dated
10.4.2007 passed by the learned Single Judge and further
proceedings for land acquisition shall remained stayed.
The stay application is allowed accordingly."
14.1. This Court is further conscious that in the present matter,
the acquisition proceedings with respect to the land in question as
[2024:RJ-JD:20834-DB] (16 of 17) [SAW-296/2009]
on date are still pending and no award/compensation has been
passed/granted.
15. This Court thus observes that the acquisition proceedings in
question had commenced way back in the year 1981 and after
issuance of the notification under Section 6 read with Section
17(4) of the Act of 1894 in the year 1994, the said proceedings
were challenged by preferring the writ petitions wherein the
impugned order has been passed by the learned Single Judge; in
pursuance of which, objections under Section 5A of the Act of
1894 were submitted. Since passing of the impugned order, about
16 years have lapsed by now, and at the relevant time, the
interim order dated 05.03.2008 passed by this Hon'ble Court was
in currency; thus, this Court deems it appropriate to grant
opportunity to the parties concerned to submit the objections
under Section 5A afresh regarding the acquisition proceedings in
question, which in turn, shall be considered and decided by the
concerned authority, strictly in accordance with law.
16. Thus, in light of the above observations and looking into the
factual matrix of the present case, this Court disposes of the
present appeals, while upholding the impugned order dated
10.04.2007 passed by the learned Single Judge, in principle;
however, the directions contained in the impugned order are
modified to the extent that the appellants are at liberty to submit
fresh objections, which in turn, shall be considered in accordance
with Section 5A of the Act of 1894.
16.1. It is needless to say that any proceeding, if already
undertaken in the intervening period, in pursuance of the
[2024:RJ-JD:20834-DB] (17 of 17) [SAW-296/2009]
impugned order passed by the learned Single Judge, will have no
consequence, as the proceedings under Section 5A of the Act of
1894 are to be initiated afresh to meet out the situation arising
out of the interim order. The process of land acquisition shall be
undertaken and completed, strictly in accordance with the Land
Acquisition Act, 1894. However, it is further made clear that such
action shall not preclude the respondents from abandoning the
land acquisition process at any stage, if they take a considered
decision in this regard. All pending applications also stand
disposed of.
(YOGENDRA KUMAR PUROHIT),J (DR.PUSHPENDRA SINGH BHATI),J
SKant/-
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