Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd. Vs. State of Rajasthan & Ors.
[Civil Appeal No. 4824 of 2013 arising out of SLP (C) No. 4722 of 2012]
Yogesh Chand Arora Vs. State of Rajasthan & Ors.
[Civil Appeal No. 4825 of 2013 arising out of SLP (C) No. 4874 of 2012]
Durga Devi Dharmarth Trust & Anr. Vs. State of Rajasthan & Ors.
[Civil Appeal No. 4826 of 2013 arising out of SLP (C) No. 5041 of 2012]
Naresh Chand Arora Vs. State of Rajasthan & Ors.
[Civil Appeal No. 4827 of 2013 arising out of SLP (C) No. 5089 of 2012]
Madrampura Grih Nirman SahkariSamiti Ltd. & Ors. Vs. State of Rajasthan & Ors.
[Civil Appeal No. 4828 of 2013 arising out of SLP (C) No. 5206 of 2012]
Yashmeen Abrar Vs. Union of India & Ors.
[Civil Appeal No. 4829 of 2013 arising out of SLP (C) No. 12072 of 2012]
Sunita Rathi & Ors. Vs. State of Rajasthan & Ors.
[Civil Appeal No. 4830 of 2013 arising out of SLP (C) No. 21205 of 2012]
Arjun Nagar Vikas Samitithrough its President Vimla Verma Vs. State of Rajasthan & Ors.
[Civil Appeal No. 4831 of 2013 arising out of SLP (C) No. 21226 of 2012]
Jagdish Singh Khehar
1. The instant common order will dispose of the following matters:-
(i) Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd. vs. State of Rajasthan & Ors., Civil Appeal arising out of SLP (C) No. 4722 of 2012);
(ii) Yogesh Chand Arora vs. State of Rajasthan & Ors., Civil Appeal arising out of SLP (C) No. 4874 of 2012);
(iii) Durga Devi Dharmarth Trust & Anr. vs. State of Rajasthan & Ors., Civil Appeal arising out of SLP (C) No. 5041 of 2012);
(iv) Naresh Chand Arora vs. State of Rajasthan & Ors., Civil Appeal arising out of SLP (C) No. 5089 of 2012);
(v) Madrampura Grih Nirman Sahkari Samiti Ltd. & Ors. vs. State of Rajasthan & Ors., Civil Appeal arising out of SLP (C) No. 5206 of 2012);
(vi) Yashmeen Abrar vs. Union of India & Ors., Civil Appeal arising out of SLP (C) No. 12072 of 2012);
(vii) Sunita Rathi & Ors. vs. State of Rajasthan & Ors., Civil Appeal arising out of SLP (C) No. 21205 of 2012);
(viii) Arjun Nagar Vikas Samiti through its President Vimla Verma vs. State of Rajasthan & Ors., Civil Appeal arising out of SLP (C) No. 21226 of 2012);
2. Leave granted in all the matters.
3. Insofar as the instant judgment is concerned, Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd. vs. State of Rajasthan & Ors. (i.e., the Civil Appeal arising out of SLP (C) No. 4722 of 2012 shall be treated as the lead case. The factual narration recorded herein, shall be based on the pleadings thereof. However, in situations wherein, during the course of hearing, reference has been made to pleadings from other cases, the same will also be adverted to.
4. The appellants herein are all land losers. Their lands were acquired for establishing a zonal office complex, and residential quarters for Railway staff, for the North Western Railway Zone, at Jaipur in the State of Rajasthan.
5. The sequence of facts commencing from the initiation, and leading to the finalization of the acquisition proceedings, are of pointed significance, in the present controversy. As such, all the relevant factual details, are being narrated hereunder, first of all.
6. On 15.11.1996, the Officer on Special Duty, North Western Railway, posted at Jaipur, addressed a communication to the Commissioner, Jaipur Development Authority, Jaipur, indicating that 26 big has of Government land was available in front of the Getor Jagatpura railway station. It was pointed out, that the aforesaid land had been allotted to the Scouts & Guides Organization. It was submitted, that the said land was ideally located, and could be effectively put to use for establishing the required infrastructure for the North Western Railway Zone complex, at Jaipur. Itwas accordingly requested, that the said Government land be transferred to the Railways.
A relevant extract of the aforesaid letter is reproduced hereunder:- "As you are aware, the new North-Western Railway Zone has been set up with headquarters at Jaipur. The actual requirements of land for setting up of the Zonal office and Quarters at Jaipur is being worked out which may take some time, but in any case adequate railway land is not available at Jaipur for the purpose. It is understood that 26 Bighas of land of the State Government to allotted to Scouts & Guides Organization is available in front of Getor Jagatpura Railway Station. This is an ideal location for use by the North-Western Railway and it is requested that this land may be transferred to Railway early for immediate use. Further requirements of land will be indicated to the State Government in due course." (emphasis is ours)
The first communication on the record of the case, relating to the requirement of land for setting up the North Western Railway Zone Complex, reveals the desire (of the Railways), that vacant Government land be transferred by the State Government, to the Railways. At this juncture, one would notice, that there is no thought about acquiring land for theRailways.
7. Following the aforesaid communication dated 15.11.1996, the Officer on Special Duty, North Western Railway, addressed another letter dated12.12.1996 to the Commissioner, Jaipur Development Authority, Jaipur, depicting the total requirements of the Railways for setting up the aforesaid zonal headquarters. The text of the said letter is being reproduced hereunder:- "In continuation of this office letter referred above the appropriate requirement of land for setting up of the zonal office and staff quarters at Jaipur has been assessed and about 87 acres of land is considered as necessary for this purpose. It is proposed to have the land for the above purpose at the locations at Getor Jagatpura. At least 40 acres of land will be required including the 20 bigha for which a request has already been made for transfer vide this office letter referred above. For the reasoning 47 acres land nearest to the Jaipur Railway Station in the Prithviraj Nagar on Jaipur-Ajmer Road will be suitable.
It is therefore requested that 40 acres land including 20 bigha of State Government land now used by scouts and guides at Getor Jagatpura and 47 acres land in Prithviraj Nagar scheme on Jaipur Ajmer Road nearest to Jaipur Railway Station may be acquired and transferred to Railways. Necessary plans of both the areas may kindly be made available to Railways." (emphasis is ours)In its follow up action, the State Government was informed about the extent of land required. The Railways sought governmental land to satisfy its requirement. The process thus suggests, that the Railways and the State Government, were jointly pursuing the objective. The State Government was requested to acquire some more land, so as to make up the deficiency, and to transfer the same to the Railways.
8. Mr. Ram Vilas Paswan, the then Union Minister for Railways addressed a letter dated 30.12.1996 to Mr. Bhairon Singh Shekhawat, the then Chief Minister of the State of Rajasthan, indicating the Union Government's desire, to set up a zonal complex for the North Western Railways, at Jaipur. The Railways requested the State Government, to provide the required land "free of cost". It was emphasized by the Union Minister for Railways, that the setting up of the new Railway Zone at Jaipur, would improve train services to and within the State of Rajasthan, and thereby, meet the expectations of public and private entities, of the area. Relevant extract of the aforesaid letter is being reproduced hereunder:-
"In order to improve the train services in Rajasthan, meet the expectations of public and private more responsive administration, the Railways have decided to create a new Zone, North Western Railway with Zonal Hqrs. Office at Jaipur. The setting up of the Railway Zonal Hqrs. Office, would require office accommodation, housing for staff, and other ancillary facilities, all of which need about 150 to 200 acres of land. May I therefore request you to ask the concerned officials to identify a suitable piece of land, about 150-200 acres at Jaipur, and provide the same to the Railways free of cost for setting up the Zone. This gesture of the State Government would go a long way in enabling us to make the Zone functional early." (emphasis is ours)A perusal of the aforesaid letter reveals, that the Railway Ministry's request was for about 150-200 acres of land.
The land would be used for establishing zonal offices for the North Western Railway Zone, and also, for raising residential quarters for Railway staff. The letter indicated, that the gesture of the State Government to provide land to the Railways "free of cost", would go a long way in making the zone functional. If the acquired land, was to exclusively serve the purpose of the Railways, then financial contribution thereto by the State Government, would be unthinkable. But strangely, the Union Minister for Railways was expecting he State Government to provide the required land, even after acquiring it, "free of cost". Logically, this would be acceptable, when the State (of Rajasthan) was to be a joint beneficiary. The incidental benefit to the State, is apparent from the opening words of the letter. The Union Minister in his above letter emphasized, that the proposed project would" improve the train services in Rajasthan, meet the expectations of public and private ".
9. On 28.2.1997, the Commissioner, Jaipur Development Authority, pursuant to the correspondence with the Officer on Special Duty, North Western Railway, pressed the Secretary, Department of Transport, Government of Rajasthan, to initiate acquisition proceedings in respect of land identified at villages Bindayaka and Todi Ramjanipura, in tehsil Sanganer of district Jaipur. Relevant portion of the aforesaid letter is being reproduced below:- "Please peruse the letter dated 12.12.1996 by Officer, North Western Railway Zone, Jaipur. The Railway had demanded land for Railway Zonal Office and staff quarters. You have discussed in this reference with the Commissioner in the room of Chief Secretary. The land village Bindayaka and Todi Ramjanipura, Tehsil Sanganer is required by Railway department being near to the Jagatpura Getor Railway Station. It would be relevant to acquire the required land by Transport Department, Rajasthan, Jaipur. Therefore, the proceedings of acquisition of 4-39 hectares of land of village Bindayaka and 9-91 hectares of Todi Ramjanipura, Tehsil Sanganer, Jaipur is to be acquired. The description of the land to be acquired, trace map and six copies of land record are annexed with the prayer that the acquisition proceedings be done at your department level for the Railway Department immediately." (emphasis is ours)
10. On 29.3.1997, the Deputy Secretary, Transport Department, Government of Rajasthan, wrote a letter to the District Collector, Jaipur, requiring him to furnish details of land, as also, land records pertaining to villages Bindayaka and Todi Ramjanipura, which was being considered for acquisition for the North Western Railway Zonal complex. The text of the aforesaid letter, is being reproduced hereunder:- "The Secretary, Jaipur Development Authority, Jaipur by letter no. P9 (295) JDA/Acqui. Off./Land Acqui./97/362 dated 20.2.1997 informed this office that Railway Department vide letter dated 12.12.1996 placed a proposal for the land for Zonal Office in Jaipur and Staff Quarters. As per proposal land of village Bindayaka and Todi Ramjanipura, Tehsil Sanganer, Jaipur near Getor Jagatpura Railway Station is to be acquired. In this reference information regarding details of land, trace map and land record along with the process of acquisition and inspection report of the acquisition officer be sent to this office." (emphasis is ours)
11. On 9.5.1997, a communication was addressed by the Officer on Special Duty, North Western Railway, to the Chief Secretary, Government of Rajasthan, reminding him of the request made by the Union Minister for Railways. Relevant extract of the said communication dated 9.5.1997, is being set out hereunder:- "It had been requested by Hon'ble Minister for Railways, vide this D.O. letter referred above (copy enclosed). To the Chief Minister of Rajasthan, to identify a suitable piece of land about 150-200 acres at Jaipur and to provide the same to the railways, free of cost, for setting up of new Railway Zone at Jaipur. Action taken in the matter by the State Government may please be advised, for taking further necessary action accordingly. The State Government officials required to be contacted for pursuing the case may also please be advised so as to enable me to instruct my officers for expediting the process of acquisition of land for setting up of facilities for North Western Railway zone." (emphasis is ours)A perusal of the letter extracted above reveals, that officers of the Railways establishment were in touch with highest levels of governmental functionaries in the State of Rajasthan, and were seriously soliciting land "free of cost" for establishing the North Western Railway Zone complex.
12. Pursuant to the aforesaid correspondence, the Secretary, Transport Department, Government of Rajasthan issued a notification under Section 4of the Land Acquisition Act, 1894 (hereinafter referred to as, the Acquisition Act), indicating the State Government's desire to acquire 15.50hectares of land situated in the revenue estate of villages Bindayaka and Todi Ramjanipura, in tehsil Sanganer, of district Jaipur. The public purpose depicted therein was, that the aforesaid land was required to establish a zonal office of the North Western Railways and for raising residential quarters for Railway staff. The aforesaid notification was duly published in the State Government gazette. Importantly, the acquisition of land for the project under reference, was being made by the Transport Department of the Government (of Rajasthan), presumably because the setting up of the project was aimed at improving transport services to and within the State, for the benefit of public and private entities. Interms of the mandatory requirements of the Acquisition Act, the aforesaid notification under Section 4, was published on 6.9.1997 in the "Dainik Navjyoti" and on 7.9.1997 in the "Rajasthan Patrika". The pleadings of the case bear-out, that publication in the locality was also made on 10.4.1998.
13. Yet again, the Deputy Chief Engineer, North Western Railway addressed a communication dated 11.6.1998 to the Deputy Secretary, Transport Department, Government of Rajasthan intimating him, that even though permission had been received to acquire 69 big has (17.52 hectares) of land near Getor Jagatpura railway station, yet no further details had been communicated by the State Government, in respect of the action taken by it,for acquiring the aforesaid land for the Railways, after the publication of the notification under Section 4 of the Acquisition Act. The aforesaid factual position, is evident from the letter dated 11.6.1998, which is reproduced hereunder:- "In the above subject it is submitted that there is no information of further proceedings after notification under Section 4 has been published on 19.8.1997. Please, inform this office immediately after proper proceedings to acquire land for Railway Zonal Office and staff quarters. It is pertinent to mention that permission has been received by this office from Railway Ministry to acquire 69 big has (17.52 hectare) land near Getor Jagatpura Railway Station. Hence inform this office immediately regarding proceedings to acquire of the above land."The above communication reveals that the Railways, as well as, the State Government were proceeding in the matter in complete tandem.
14. Objections were invited under Section 5A of the Acquisition Act from persons interested in the land. Having considered the objections raised by the persons interested, the Land Acquisition Collector submitted a report to the Government. Insofar as Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd. (appellant in the Civil Appeals arising out of SLP (C) no. 4722of 2012, which is hereinafter referred to as, the appellant Samiti) is concerned, the determination was as under:- "An application on 8.4.2009 was filed by Shrawan Singh Khinchi, Hemant Goyal, Prabhu Lal Meena, Sharda Purohit, Nirmala, Suresh Kumar Sharma, Yogesh Aroda, Naresh Chand Aroda, Ganga Sahay Meena, residents/members of Madrampura Grih Nirman Sahakari Samiti planning Prakash Nagar and Gopalpura Grih Nirman Sahakari Samiti planning Jagatppura first (Mayur Vihar) stating that the tenants of Khasra no. 280, 282, 284 and 291 Girijadevi and Rampal Das Swami sold and handed over the possession of the land to Madrampura Grih Nirman Sahakari Samiti and Gopalpura Grih Nirman Sahakari Samiti in 1981 and received the entire sale consideration. The societies have allotted the land to the plot holders/members from 1981 to 1983 and most of the members have constructed houses before the acquisition proceedings. The applicants have submitted that the houses have been constructed before the acquisition proceedings. Hence if the land is left out of acquisition being on one side corner only, it will not affect the railway scheme. The applicants submitted that the tenant Girija Devi and Rampal Das Swami are not interested persons, therefore, their objections should not be considered and they should be given 15 days time to file objections. Objections of the applicants were considered and the application dated 8.4.1999 is filed which is after due date 5.4.1999. Even then the claim is being decided on merits in the interest of justice.
The applicants have not produced any documents or evidence in their favour. As it is determined hereinabove that the society cannot get any right only on the basis of agreement to sale and similarly the members cannot get any legal right on the basis of allotment letter issued by society. This matter is purely a matter between the Khatedar and society and its members. The plot holders cannot be considered as interest persons to get compensation. They can get compensation from the Khatedars. Hence the objection is rejected.
(emphasis is ours)
A perusal of the aforesaid determination reveals, that the appellant Samiti had not filed its objections within the prescribed period of limitation, and as such, its objections could have been rejected simply because th esame were filed belatedly. Yet the matter was examined on merits. The claims of the appellant Samiti were found to be unsustainable because the appellant Samiti did not have any right to file objections. In this behalf it was noticed, that the appellant Samiti had relied on agreements to sell in respect of the acquired land. Agreements to sell, it was felt, did not vest any legal right in the appellant Samiti (on the date of issuance of the notification under Section 4 of the Acquisition Act).
15. On 19.8.1997, the State Government authorized the OSD-II i.e. the Collector, Jaipur, to enter into the land sought to be acquired.
16. After having dealt with the objections of interested persons including the appellant Samiti, on the subject of compensation, it was observed as under:- It was considered as to who should be given the compensation of the acquired land. The objections filed before this court makes it clear that certain Khatedar tenants have transferred their land to the housing societies or certain other persons and construction has also been made by such persons. First of all, no such sale agreement has been filed before this court. Secondly land cannot be considered to be sold on the basis of agreement to sale. According to Section 17 of the Registration Act, any immoveable property of value more than Rs.100/- is required to be registered compulsorily.
Hence any transfer of possession by unregistered document is not valid. Hon'ble Rajasthan High Court has confirmed this view in Writ Petition no. 2027/92, 1017/92, 4102/91 by judgment passed on 8.12.1992. Hence the transfer by way of agreement to the housing society cannot be recognized. And subsequent transfer of possession is illegal. It has been settled in the case of Banwari Lal Vs. State of Rajasthan & Ors., 1986 (2) WLN 648, that such transfer of land for non-agricultural purpose is useless. Transfer of agricultural land for non- agricultural purposes is against the provisions of Section 42A of the Rajasthan Tenancy Act and Section 90A of the Land Revenue Act. Thus any constructions made by persons other than Khatedars on the land under acquisition are illegal. Therefore compensation for the illegal construction is not proper." (emphasis is ours)
17. Having rejected the objections raised by the persons interested(including all those at whose behest, the present proceedings have been initiated before this Court), the State Government notified its declaration under Section 6 of the Acquisition Act, in the State Government gazette, expressing its final determination for acquiring the land in question. The afore said declaration dated 13.1.1999 was published in the State Government gazette dated 21.1.1999.
18. Thereafter, public notices were issued by the Land Acquisition Officer, intimating all interested persons the intent of the State Government to take possession of the acquired land. On 21.3.2001, the Land Acquisition Officer passed an award, determining the compensation payable to land owners, whose land was being acquired.
19. The first contention advanced at the hands of the learned counsel for the appellants was, that the instant acquisition proceedings emerging out of the notification issued under Section 4 of the Acquisition Act (dated19.8.1997), and the consequential declaration under Section 6 of the Acquisition Act (dated 13.1.1999) could not have been issued by the State Government. In fact, it was the pointed submission of the learned counsel for the appellants, that the State Government had no jurisdiction to acquire the land in question. In this behalf it was submitted, that the land was for the use and utility of the Railways, namely, for establishing zonal offices for the North-Western Zone, as also, for raising residential quarters for the staff to be posted there. Since Railways is a Union subject (under entry 22 of the Union List, in the Seventh Schedule to the Constitution of India), it was submitted, that it is the Union Government alone, which had the jurisdiction to acquire the land in question.
In so far as the instant aspect of the matter is concerned, learned counsel for the appellants invited our attention to Sections 4 and 6 of the Acquisition Act. The aforesaid provisions are being extracted herein :
"4. Publication of preliminary notification and powers of officers thereupon-
(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional language] and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification.
(2) Thereupon it shall be lawful for any officer, either, generally or specially authorised by such Government in this behalf, and for his servants and workmen, to enter upon and survey and take levels of any land in such locality; to dig or bore in the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches, and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling- house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so. xxx xxx xxx
6. Declaration that land is required for a public purpose.-
(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders an different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (!), irrespective of whether one report or different reports has or have been made (wherever required) under section 5-A, sub-section (2): Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1),--
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification: Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation 1.-In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by an order of a Court shall be excluded.
Explanation 2.-Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues].
(2) Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the date of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the declaration), and such declaration shall state] the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration the appropriate Government may acquire the land in manner hereinafter appearing." (emphasis is ours)A perusal of Sections 4 and 6 extracted above reveal, that it is the "appropriate Government" which is to be satisfied about the public purpose for which the land in question is to be acquired. And it is the "appropriate Government" alone, which is vested with the responsibilities contemplated under the aforesaid Sections 4 and 6. Accordingly, it is only the "appropriate Government" which can issue the required notifications expressing the intention to acquire land, and thereafter, the postulated declaration, after examining the objections of the persons interested.
20. In order to substantiate the appellants' contention, that jurisdiction to acquire land for the Railways, could have been exercised only by the Central Government, and that the State Government had no authority to acquire land for the Railways, learned counsel placed reliance on Section 3(ee) of the Acquisition Act. Section 3(ee) aforementioned is being reproduced below : "3(ee) The expression "appropriate Government" means in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the State Government."Relying on Section 3(ee) extracted above, it was the submission of the learned counsel for the appellants, that in relation to acquisition of land for the Union, the Central Government alone had the jurisdiction to acquire the land.
Accordingly, it was contended, that it was the Central Government alone, which had the jurisdiction to issue the prescribed notification under Section 4 of the Acquisition Act, (expressing the intention of the Union Government to acquire, the land). Having thereby, brought the "appropriate Government's" intention to acquire the land to the notice of all interested persons, and having considered the objections (if any) filed at the behest of such interested persons, the Central Government alone could have issued the consequential declaration under Section 6 of the Acquisition Act. Learned Counsel for the appellants was emphatic, that the notification to acquire land for the Railways could have only been issued by the Central Government.
21. Learned counsel for the appellants ventured to substantiate his above contention, by reading the definition of the term 'appropriate Government 'along with the said words used in Sections 4, 5, 5A(2), 6, 7, the first and second proviso to Section 11(1), Sections 12 to 14, 15A, 16, 17(1) and (2),31(3), 40, 41, 48, 49(2) and 50 of the Acquisition Act. The thrust of the instant submission is being summarized here under: Firstly, referring to Section 4 of the Acquisition Act, it was the submission of the learned counsel for the appellants, that the use of the term "appropriate Government" in Section 4(1) of the Acquisition Act, with reference to the publication of the intention to acquire land (by way of a notification) has to be visualized with reference to the definition of the said term under Section 3(ee) of the Acquisition Act.
On such examination, according to the learned counsel, it would clearly emerge, that it was only the Central Government which could have issued the notification dated19.8.1997. But in the present case, the said notification has been issued by the Government of Rajasthan. Secondly, with reference to Section 5 of the Acquisition Act, it was submitted, that the term "Collector" used therein, must be viewed with reference to Section 3(c) of the Acquisition Act. Section 3(c) is being extracted hereunder: "3(c) the expression "Collector" means the Collector of a district, and includes a Deputy Commissioner and any officer specially appointed by the Appropriate Government to perform the functions of a Collector under this Act "Based on the aforesaid definition of the term "Collector, it was the contention of the learned counsel for the appellants, that the nomination of the "Collector/Deputy Commissioner/Officer specially appointed" has to be made by the "appropriate Government".
Since the "appropriate Government" in the facts and circumstances of the present case is the Central Government, according to the learned counsel, the nomination of the 'Collector' with reference to Section 5 of the Acquisition Act, could only have been ordered by the Central Government; whereas, it is apparent from the facts of this case, that the State Government by an order dated19.8.1997, authorized the SDO-II/Land Acquisition Officer/Collector, Jaipur, as "Collector" for all purposes connected with the present acquisition.
The nomination of the Collector by the State Government, when the land was being acquired for the benefit of the Railways, according to the learned counsel, was clearly beyond the jurisdiction of the State Government. Thirdly, with reference to Section 5A(2) of the Acquisition Act, it was submitted, that the objections under Section 5 of the Acquisition Act are to be made to the Collector in writing. And, it is the Collector who is to afford an opportunity of hearing to the persons concerned, before submitting a report to the appropriate Government. Learned counsel vehemently contended, that in interpreting Section 5A(2) of the Acquisition Act, the term 'Collector' has to be interpreted in consonance with the definition thereof under Section 3(c), and with reference to the term "appropriate Government" defined in Section 3(ee) of the Acquisition Act.
Thus viewed, it was the submission of the learned counsel, that not only the "Collector" to whom objections were meant to be addressed, but the Collector who had to consider and dispose of the said objections, ought to have been a person nominated by the Central Government. Herein, according to the learned counsel, admittedly the State Government had notified the "Collector" for acquisition of the land in question. The receipt of the objections, as also, the determination thereof, must, therefore, be deemed to have been rendered by an authority having no jurisdiction (either to receive the objections or to submit a report to the appropriate Government with reference to said objections), in the matter. Fourthly, it was contended, that the declaration under Section 6 of the Acquisition Act is to be made on the satisfaction of the "appropriate Government".
Herein also, viewed with reference to the definition of the term 'appropriate Government' in Section 3(ee) of the Acquisition Act, it was submitted, that it was the Central Government alone whose satisfaction was material, whereupon, the Central Government could have issued the postulated declaration (contemplated under Section 6 of the Acquisition Act). Herein, according to the learned counsel, admittedly the declaration was made on 13.1.1999 by the State Government under Section 6 of the Acquisition Act. As such, it was asserted that the same lacked any authority of law. Fifthly, according to the learned counsel for the appellants, under Section7 of the Acquisition Act, after complying with the procedure contemplated under Section 6, the "appropriate Government" (or some officer authorized by the "appropriate Government") is to direct the Collector "to take order for the acquisition of the land".
The aforesaid procedure contemplated under Section 7, according to learned counsel for the appellants, has also been vested with the Central Government. Insofar as the present acquisition proceedings are concerned, it was the Central Government which had to direct the Collector to take appropriate action contemplated under Section 7 of the Acquisition Act. Since in the facts of the instant case, it is the Government of Rajasthan, which had issued the aforesaid direction, according to learned counsel, the same violates the mandate of Section 7 of the Acquisition Act. Sixthly, learned counsel for the appellants placed reliance on the first and the second provisos to the Section 11(1) of the Acquisition Act, in order to contend, that while preparing the award with reference to the acquired land, and while determining the true area of the acquired land, and the compensation payable there for, as also, the appropriation of such compensation amongst persons interested, the power and authority there for, is vested in the Collector (with the previous approval of the "appropriate Government").
Yet again, it was the contention of the learned counsel for the appellants, that the provisos referred to hereinabove, were bound to be appreciated with reference to the definition of the term "Collector" in Section 3(c), and the term 'appropriate Government' under Section 3(ee) of the Acquisition Act. In so doing, according to learned counsel, the inevitable result would be, that the "appropriate Government" contemplated, is the Central Government. And, accordingly, the Collector contemplated therein, would be one nominated by the Central Government. It was pointed out, that for the acquisition proceedings under reference, the approval of the State Government, and not the Central Government was sought by the Collector. It was further pointed out, that the concerned Collector had been nominated by the State Government. For the aforesaid reasons (principally on the same basis, as noticed in the foregoing contentions),it was submitted, that the instant action of acquisition, was in clear violation of the mandate of the provisions of the Acquisition Act.
According to learned counsel, all the above actions, had to be taken by a Collector nominated by the Central Government, and upon the previous approval of the Central Government. Since the position in the facts and circumstance of the present case is not so, it was submitted, that the instant process of acquisition, was in clear violation of the mandate of the above-mentioned provisions of the Acquisition Act. Seventhly, with reference to Sections 12, 13, 13A and 14, it was submitted, that the term 'Collector' used therein, had to be viewed with reference to Section 3(c) of the Acquisition Act, inasmuch as, the Collector in the facts of the present case, had to be nominated by the Central Government, and therefore, for the procedure contemplated by the provisions referred to above, was required to be executed by a Collector nominated by the Central Government.
In the present case, the State Government, by its order dated19.8.1997 authorized the SDO-II/Land Acquisition Collector, Jaipur, to carry out the functions contemplated under Sections 12, 13, 13A and 14 of the Acquisition Act. As such, according to learned counsel, the aforesaid procedure having been carried out by a person having no authority to do so, must be deemed to have been carried out without jurisdiction, and inviolation of the above mentioned provisions of the Acquisition Act. Eighthly, the term 'appropriate Government' referred to in Sections 16,17(1), 17(2), 31(3), 40, 41 and 49(2), according to the learned counsel, could only have meant the Central Government, and not the State Government.
It was submitted, that in giving effect to the above provisions, the Central Government had unquestionably remained out of reckoning, and it was the Government of Rajasthan, which has shouldered all the responsibilities contemplated under the said provisions. For just the same reasons, as have been noticed above, it was submitted that the scheme of the Acquisition Act very clearly defines the manner in which the provisions there under, were to be given effect to. Since the land was being acquired for the Railways, according to learned counsel representing the appellants, the responsibilities ought to have been shouldered by the Central Government, whereas, the entire action for the acquisition of the land in the present controversy, was dealt with by the State Government.
22. Having given our thoughtful consideration to the issue canvassed at the hands of the learned counsel for the appellants, we are of the view that it is necessary in the first instance to determine the subject of legislative competence. If the determination of legislative competence so determined falls in the realm of the Parliament, then the contemplated appropriate Government would be the Central Government. Whereas, if the legislative competence falls in the realm of the State Legislatures, then the appropriate Government in the facts and circumstances of the present case would be the State Government. During the course of hearing, while examining the issue of legislative competence, our attention was invited to entry 33 of the Union List, entry 36 of the State List and entry 42 of the Concurrent List (of the Seventh Schedule of the Constitution of India).All the aforesaid entries are being extracted hereunder: Entry 33 (in list I, of the Seventh Schedule)
"33. Acquisition or requisitioning of property for the purposes of the Union." Entry 36 (in list II, of the Seventh Schedule) "36. Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III." Entry 42 (in list III, of the Seventh Schedule) "42. Acquisition and requisitioning of property."Before proceeding further, it would be relevant to point out that entries33 and 36 (in lists I and II respectively, of the Seventh Schedule) were omitted by the Constitution (Seventh Amendment) Act, 1956. And in place of the above two entries, entry 42 (in list III, of the Seventh Schedule) was substituted (through the same constitutional amendment). Prior to above substitution, Entry 42 in List III read as under: Entry 42 (in list III, of the Seventh Schedule), prior to its substitution: "42. Principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given.
"23. The scope and effect of aforesaid three entries, falling in three different lists of the Seventh Schedule were examined by a Constitution Bench of this Court in State of Bombay v. Ali Gulshan, AIR 1955 SC 810.The question posed, and the determination rendered thereon, are being extracted hereunder: "2. On the hearing of the petition before Tendolkar, J., the State succeeded on the ground that the purpose for which the requisition was made was a "public purpose" within the meaning of the Act. But, on appeal, it was held that though the requisition was for a public purpose, the requisition order was invalid, as the public purpose must be either a purpose of the Union, or a purpose of the State and in this particular case the accommodation being required for housing a member of a foreign Consular staff was a Union purpose, which was outside the scope of the powers of the State. xxx xxx xxx
5. The ultimate source of a authority to requisition or acquire property is be found in article 31 of the Constitution. The requisition or acquisition must be for a public purpose and there must be compensation. This article applies with equal force to Union legislation and State legislation. Items 33 and 36 of List I and List II of the Seventh Schedule to the Constitution empower respectively Parliament and the State Legislatures to enact laws with respect to them.
6. The reasoning by which the learned appellate Judges of the Bombay High Court reached their conclusion is shortly this. There can be no public purpose, which is not a purpose of the Union or a purpose of the State. There are only these two categories to consider under the statute, as the words "any other purpose" in the particular context should be read ejusdem generis with "the purpose of the State". The provision of accommodation for a member of the foreign consulate staff is a "purpose of the Union" and not a "purpose of the State".
7. We are unable to uphold this view as regards both the standpoints. Item 33 in the Union Legislative List (List I) refers to "acquisition or requisitioning of property for the purposes of the Union". Item 36 in the State List (List II) relates to "acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III". Item 42 of the Concurrent Legislative List (List III) speaks of "the purpose of the Union or of a State or for any other public purpose". Reading the three items together, it is fairly obvious that the categories of "purpose" contemplated are three in number, namely, Union purpose, State purpose, and any other public purpose. Though every State purpose or Union purpose must be a public purpose, it is easy to think of cases where the purpose of the acquisition or requisition is neither the one nor the other but a public purpose.
Acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a public purpose, though it will not strictly be a State or Union purpose. When we speak of a State purpose or a Union purpose, we think of duties and obligations cast on the State or the Union to do particular things for the benefit of the public or a section of the public. Cases where the State acquires or requisitions property to facilitate the coming into existence of utilitarian institutions, or schemes having public welfare at heart, will fall within the third category above- mentioned.
8. With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the court below for reaching the result that the words "any other public purpose" are restricted to a public purpose which is also a purpose of the State, has scarcely any application. Apart from the fact that the rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applied. If the words "any other public purpose" in the Statute in question have been used only to mean a State purpose, they would become mere surplus age; Courts should lean against such a construction as far as possible.
9. Even if it is conceded that the law contemplates only two purposes, namely, State purpose and Union purpose, it is difficult to see how finding accommodation for the staff of a foreign consulate is a Union purpose and not a State purpose. Item 11 in the Union list specifies "diplomatic, consular and trade representation" as one of the subjects within the legislative competence of Parliament, and under article 73 of the Constitution, the executive power of the Union shall extend to all such matters. It can hardly be said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the Union for which the State cannot legislate.
It was conceded by Mr. Rajinder Narain, Counsel for the Respondent, that there is no duty cast upon the Union to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of a Consul in modern times are to protect the interests and promote the commercial affairs of the State which he represents, and that his powers, privileges and immunities are not analogous to those of an ambassador. The trade and commerce of the State which appoints him with the State in which he is located are his primary concern. The State of Bombay is primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State. We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Union purpose.
10. In any event, as already pointed out, "other public purpose" is a distinct category for which the State of Bombay can legislate, as the acquisition or requisitioning of property except for the purposes of the Union, is within its competence under item 36 of the State List.
11. There is another way of looking at the question involved. An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose. Even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose. In this view also, the requisition in this case must be held to have been validly made." (emphasis is ours)In its determination with reference to public purpose (relatable to acquisition proceedings), this Court in the judgment referred to herein above, clearly held, that public purpose may be relatable to the Central Government, alternatively, it may be relatable to the State Government. Besides the aforesaid two alternatives, there is also a third alternative, namely, a situation wherein the public purpose is a general public purpose, which is neither exclusively relatable to the Central Government and/or fully relatable to the State Government. The third alternative, would be a situation, wherein the cause in question furthers a common public purpose and is relatable both to a Union and a State cause.
24. It would be relevant to mention, that the judgment rendered by this Court in State of Bombay vs. Ali Gulshan (supra) was brought to our notice by the learned counsel for the appellants. The purpose for doing so, was to enable us to examine the matter in the correct perspective. For this, learned counsel for the appellants pointed out, that the law declared by the above judgment, came to be negated by the Constitution (Seventh Amendment) Act, 1956, which repealed entries 33 and 36 (in lists I and II respectively, of the Seventh Schedule) and substituted entry 42 (in list III, of the Seventh Schedule).
25. Before recording any final determination, we may now refer to the judgments cited at the behest of the appellants. Reference was made to the decision rendered by the Allahabad High Court in Balak & Ors. v. State of Uttar Pradesh & Anr., AIR 1962 Allahabad 208. The facts in the afore-cited judgment are almost similar to the controversy in hand. From the cited judgment, our attention was drawn to the following observations: "6. Now I proceed to discuss the merits of the writ petition. The main contention of Mr. S.C. Khare is that the acquisition proceedings are for a Union purpose. It was not open to the State Government to initiate the acquisition proceedings. The impugned notifications mention that land is being acquired for construction of staff quarters in connection with the North Eastern Railway Head-quarters Scheme.
This is a Union purpose. But it has been urged for the opposite parties that, the State Government has authority to acquire land for the benefit of the Union. xxx xxx xxx 13. We have to consider whether the 1952 notification can be considered to be an order by the President of India, although the notification purports to have been issued by the Central Government. Under Article 53 of the Constitution, the Executive power of the Union shall be vested in the President and shall be exercised by him either directly Or through officers subordinate to him in accordance with the Constitution. According to Clause (1) of Article 77 of the Constitution, all executive action of the Government of India shall be expressed to be taken in the name of the President. Under this Article, even if action is taken by the. Central Government, the relevant order ought to be issued in the name of the President. I do not find in the Constitution the converse proposition. There is no provision to the effect that, orders to be issued by the President might be issued in the name of the Central Government. We have seen that under Clause (1) of Article 258 of the Constitution, it is the President who can delegate his functions to the State Government. There is nothing in the Constitution to suggest that the Central Government may act on behalf of the President for purposes of Article 258.
It is true that, under Article 74 of the Constitution, the President is aided by a Council of Ministers. It was open to the Council of Ministers to advise the President for issuing an order under Article 258 of the Constitution. But ultimately the order had to be issued by the President, or in the name of the President. In the instant case the 1952 notification was issued by the Central Government, and not by the President. I agree with Mr. Khare that the notification dated 29-3-1952 is not a valid notification delegating powers under Article 258 of the Constitution. The 1952 notification did not empower the State Government to take action under the Act on behalf of the Union Government. In the absence of any such delegation of powers, action in the instant case ought to have been taken by the appropriate Government (the Central Government). It was not open to the State Government to issue notifications under Sections 4 and 6 of the Act on behalf of the Union Government.
The two notifications dated 2-3-59 and 16-4-59 with reference to the area of 113.78 acres are invalid. The authorities have tried to dispossess the petitioners on the strength of these notifications. The petitioners are entitled to be restored to possession, in case the authorities have already dispossessed the petitioners. Since the petition partly succeeds, the parties may be directed to bear their own costs. (emphasis is ours)It was the vehement contention of the learned counsel for the appellants, that the Allahabad High Court had interpreted the provisions of the Acquisition Act, by appropriately referring to the relevant provisions of the Constitution of India. Learned counsel accordingly submitted, that the legal/constitutional inferences recorded in the cited judgment would clearly demonstrate, that only the Central Government had the jurisdiction, to issue the notification and declaration under Sections 4 and 6respectively of the Acquisition Act, in the case in hand.(ii) Reference was also made to the paragraphs extracted below from the decision rendered by the Bombay High Court in Ramdas Thanu Dessai & Ors. v.State of Goa & Ors., 2009 (1) Mh.L.J. 241. Herein also, the controversy before the High Court was similar to the one in hand.
"5. As already seen above, once it is not in dispute that the acquisition is for the South Western Railways for the purpose of construction of railway line and cargo handling terminal at Shelvona, and the entire acquisition cost would be borne by the respondent Nos. 2 and 5, it obviously means that the acquisition is for the Union and, therefore, such acquisition has to be by the Central Government who is the appropriate Government for initiating such action. xxx xxx xxx 7. In our considered opinion, it is difficult to accept the contention sought to be raised on behalf of the respondent Nos. 1 and 4.
The section 4 of the said Act clearly requires the appropriate Government to take initiative for commencement of acquisition proceedings and section 3(ee) specifies as to who would be the appropriate Government bearing in mind the purpose for which the acquisition of land is contemplated. In the case in hand, as already seen above, the acquisition of land specified in the Schedule annexed to the notification is for the purpose of construction of railway line and cargo handling terminal for South Western Railway. The arguments on behalf of the respondent Nos. 1 and 4 relates to the benefits which may arise to the local residents out of construction of such railway line and the terminal and not to the purpose for which the land is sought to be acquired.
The resultant benefits which the residents of the affected area in Goa may enjoy is not the purpose for which a particular land is sought to be acquired. If the argument on behalf of the respondent Nos. 1 and 4 is to be accepted, then even the land which is used for laying the railway line and which undisputedly belong to the Union of India would fall in the category of any other purpose. That is not the legislative intent behind defining the term "appropriate Government" under section 3(ee). 8. The appropriate Government under section 4 read with section 3(ee) is that Government which takes decision to acquire the land for its purpose. In the case in hand, once it is not in dispute that pursuant to the proposal by the State Government it was the decision of the Union and its Department of Railways to acquire a particular land for construction of the terminal to be constructed and maintained by the respondent Nos. 2 and 5, it cannot, in the same breath, be said that the acquisition is also for any other purpose. The purpose of acquisition is clearly specified in the notification.
Once a particular purpose is specified in the said notification, it cannot be sought to be stated by way of an affidavit that the real purpose is something different from the one disclosed in the notification nor such additional benefits which may accrue on account of acquisition of land to the residents of the locality could be said to be the purpose for which the land is sought to be acquired. 9. It is to be borne in mind that after issuance of notification under section 4, the interested parties are entitled to object to such notification and in that regard the Collector is enjoined to hear the objections and make a report to the appropriate Government and after considering such reports, the appropriate Government is required to take appropriate decision which should culminate in the form of declaration under section 6.
The sections 4, 5, 5A and 6 specifically refers to the appropriate Government and its satisfaction for need to acquire the land. Once it is not in dispute that the proposed acquisition of land is for the purpose of railway terminal, to be built by the respondent Nos. 2 and 5 at their own cost and to be maintained by them, and such terminal is to be used for the activities in relation to the railways i.e., for unloading of ore transported by the railways from Kamataka to Goa, it cannot be said that the land is sought to be acquired for any other purpose. It is to be held that the land is being sought to be acquired for the Union purpose. 10. In spite of the fact that the land is sought to be acquired for the Union, it is undisputed fact that the State Government claims to be the appropriate Government in respect of the acquisition proceedings in question.
Obviously, it is without any authority to be the appropriate Government for the purpose of such acquisition. Therefore, the notification and the declaration are to be held as bad in law. xxx xxx xxx 12. When the statutory provisions comprised under sections 4 and 6 read with section 3(ee) of the said Act clearly provide that in cases of acquisition for the purpose of Union, the appropriate Government would be the Central Government, the exercise of executive power cannot be allowed to transgress the said statutory provisions comprised under the said Act. The petitioners are justified in contending that the executive power is always subservient to the legislative power. It is always subject to legislative provision and has to yield to the legislative power.
Mere inclusion of the Entry No. 42 in the concurrent list, which speaks of the principles on which compensation for the property acquired and requisitioned for the purpose of the Union and the State or for any other public purpose is to be determined and the form and the manner in which such compensation is to be given, by that itself would not empower the executive to act in contravention of the provisions made in the Central Legislation. It cannot be disputed that the said Act was enacted prior to the independence of India. However, the same was adapted in terms of the Adaptation Order of 1950 and, therefore, is a law made by the Parliament within the meaning of the said expression under the proviso to Article 162 of the Constitution of India. xxx xxx xxx
18. It is thus clear that in spite of the fact that the acquisition of the land is for the Union's purpose and at the cost of the Central Government, the process of acquisition was sought to be initiated by publication of notification under section 4 of the said Act by the State Government claiming to be the appropriate Government. As the law stands, the acquisition for the Union's purpose cannot be initiated by the State Government unless there is specific delegation of power in that regard and in the case in hand there has been no such delegation. Hence, as rightly submitted on behalf of the petitioners, the notification under section 4 and the declaration under section 6 in relation to the land in question by the State Government is bad in law and is liable to be struck down."
(emphasis is ours)
It was submitted by learned counsel for the appellants, that the issue has been correctly adjudicated even by the Bombay High Court, and that, this Court should endorse the same, while adjudicating the present controversy.(iii) Reliance was also placed on Messrs. Tinsukia Development Corporation Ltd. v. State of Assam & Anr., AIR 1961 Assam 133, wherein a Full Bench of the Assam High Court held as under : "3. The submission made on behalf of the petitioner is that as the land was needed for construction of the food-grains godown by the Government of India the purpose was a Union purpose and the Central Government was the appropriate Government. It is not disputed that the two notifications under Sections 4 and 6 were issued on behalf of the State Government. From a perusal of the notification under Section 6 it is also clear that it was the State Government which was satisfied that the land was needed for a public purpose before issuing a declaration under Section 6.
4. The contention on behalf of the State is two-fold in reply to the argument of the counsel for the petitioner. Firstly it is urged that merely because the land is needed for construction of a food- grains godown by the Central Government, it does not necessarily follow that the purpose is a Union purpose. The maintenance of proper supply of food-grains to the inhabitants of this State is as much the responsibility of the State Government as that of the Central Government. The benefit by the construction of the food-grains godown will be derived by the public of this State and as such it is a public purpose and not a purpose of the Union alone."It would be relevant to mention, that the submission advanced on behalf of the acquiring Government, was akin to the "third alternative" expressed by the Constitution Bench of this Court in State of Bombay vs. Ali Gulshan(supra).(iv) Reliance was also placed by the learned counsel for the appellants, on Sudhansu Sekhar Maity & Ors. vs. State of West Bengal & Ors., AIR 1972Calcutta 320, and our attention was drawn to the following:-
"9. In dealing with this point it should first be noted that after the seventh amendment to the Constitution both entries 33 & 36 respectively of the Union list and the State list have now been deleted and entry 42 of the concurrent List has been appropriately amended to cover "acquisition and requisitioning of property". On this amendment acquisition is on the concurrent list and both the Union and the State are equally authorised to legislate on the subject of acquisition irrespective of purpose of such acquisiti
