1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT 1. DEEPA RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 4251/08) 2. CHUNILAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2400/08) 3. AASURAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2401 /08) 4. GANESHA RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2402 /08) 5. BHANWAR LAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2403 /08) 6. SHANKER LAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2404 /08) 7. HAJARI RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2405/08) 8. RAMLAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2406 /08) 9. JAMNA & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2407/08) 10. BADHU & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2419 /08) 11. BABU LAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2420 /08) 12. RAMESHWAR LAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2421/08) 13. PUSHPA DEVI VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2422 /08) 14. SOHAN LAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2423/08) 15. CHOLA RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2424/08) 16. PUNAM CHAND VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2425/08) 17. DEDA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2427/08) 18. GOMAND RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2619 /08) 19. ROOPA RAM & ANR. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2620 /08) 20. MULA RAM & ORS VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2621/08) 21. SUGANA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2622 /08) 22. MEVA SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2639 /08) 23. KAMLA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2640 /08) 24. RAM PRAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2641 /08) 25. KRISHAN KUMAR VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2642 /08) 26. SHANKER & ANR. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2643/08) 2 27. ROSHANI DEVI VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2644 /08) 28. CHUNILAL & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2647/08) 29. DUNGAR RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2648/08) 30. BHANWAR KHAN & ORS.VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2649/08) 31. GANI KHAN VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2650/08) 32. SMT. MOHNI DEVI & ORS.VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.2912 /08) 33. BUDHRAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3133 /08) 34. RAWAT RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3134 /08) 35. KARAN SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3135/08) 36. BRIJA RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3136/08) 37. BRIJ LAL & ANR. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3137 /08) 38. MANGI LAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3138 /08) 39. GANG NATH & ANR. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3139/08) 40. SHAITAN SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3140 /08) 41. BHIKHI & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3141/08) 42. YOGESH KUMAR VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3142/08) 43. RAMESHWAR VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3143/08) 44. KULDEEP MATHUR VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3144 /08) 45. GOPICHAND VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3145 /08) 46. BIRLA RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3146 /08) 47. NARESH KUMAR VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3147 /08) 48. RAMESHWAR & ANR. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3148 /08) 49. RAJESH KUMAR VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3149 /08) 50. NAND RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3150 /08) 51. DEVI SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3151 /08) 52. MALA RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3152/08) 53. MANGI LAL & ANR. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3153 /08) 54. ASU RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3154 /08) 55. MUKESH KUMAR VS. STATE OF RAJASTHAN & ORS. 3 (S.B.CIVIL WRIT PETITION NO.3155 /08) 56. NAJIRA VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3293/08) 57. ASHA & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3341/08) 58. HAMID KHAN & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3342/08) 59. RAMA DEVI VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3343 /08) 60. BHOJA RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3344 /08) 61. POONAM CHAND VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3345 /08) 62. CHOTTU KHAN & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3346 /08) 63. MANGI LAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.3605 /08) 64. LAXMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3607/08) 65. RAM DAYAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3614/08) 66. ANAND MITTAL VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3639/08) 67. SARWAN KUMAR VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4785./08) 68. SHANTI DEVI VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.4786/08) Dated:- 9 March,2010. HON'BLE MR.JUSTICE SANGEET LODHA Mr. J.L.Purohit, for the petitioners. Mr. G.R.Punia, Additional Advocate General, for the State of Rajasthan. Mr. M.R.Singhvi, for the respondent-Rajasthan Mines & Minerals Limited. Reportable 1. These writ petitions assailing the declaration u/s 6 of the Land Acquisition Act, 1894( in short “the Act”) published vide notification dated 5.2.08 involve common questions and therefore, the same were heard together and are being disposed of by this common order. 2. The relevant facts in nutshell are that the State Government issued a notification dated 7.4.07 under Section 4(1) of the Act, whereby 1424.81 hectares agriculture land situated in Revenue village Beethnok, Lakhasar, Chak Khuri, Gurha, Chak Madhogarh in colonisation tehsil Kolayat No.1, district Bikaner was proposed to be acquired in favour of the company Rajasthan State Mines & Minerals Corporation Limited ( “RSMM”) at its own 4 costs, for excavation of the mineral lignite in the mining area covered by the said land . The persons interested were directed to submit their objections against the proposed acquisition of the land in writing within a period of 30 days of publication of the notification before the Land Acquisition Officer. Admittedly, none of the petitioners submitted their objections. However, a few objections were raised by the agriculturist of village Gurha. After consideration of the report made under Section 5A, the declaration u/s 6 of the Act was issued by the State Government vide notification dated 5.2.08 which was published in the Rajasthan Gazette dated 20.2.08. A notice u/s 9 of the Act was issued to the petitioners and they were asked to hand over the possession of the land . At this stage, the validity of the land acquisition proceedings is challenged by the petitioners herein on various grounds before this court by way of these writ petitions. 3. It is contended by the learned counsel for the petitioners that the land acquisition proceedings initiated for the benefits of RSMM, a company, at its own costs without complying with the mandatory provisions of Part VII of the Act and Rule 4 of the Rules of 1963 are void ab initio and deserves to be quashed and set aside for this reason alone. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “Devinder Singh vs. State of Punjab”, 2008(1) SCC, 728. It is submitted by the learned counsel that before issuing the notification u/s 4 of the Act, the State Government is under an obligation to form an opinion after due consideration of all relevant aspects that the land needs to be acquired for the public purpose or a company. It is submitted by the learned counsel that before issuing the notification, even the availability of the mineral was not ascertained by the State Government and therefore, the notification issued without forming any opinion as to the actual need of the acquisition is not sustainable in the eye of law. It is submitted that the excavation of the mineral lignite can only be done under the provisions of Mining & Minerals 5 (Regulation & Development) Act, 1957 and the Rules framed thereunder. It is submitted that for the purpose of excavation of the lignite a prospective license was required to be obtained by the company for coming to the conclusion that the lignite is available in the land sought to be acquired. It is submitted that in absence of the prospective license and the investigation thereunder, the land could not be acquired on the assumption that the lignite exists underneath. It is next contended by the learned counsel that the report u/s 5 A after enquiry was submitted to the State Government by the Assistant Commissioner Colonisation, who is not authorised to undertake such exercise. It is submitted that the Assistant Commissioner Colonisation is the authority different than the Sub Divisional Officer and therefore, the notification dated 2.5.87 issued by the State Government authorising Sub Divisional Officer- cum- Land Acquisition Officer to perform the functions of the Collector under the Act cannot validate the report submitted by the Assistant Commissioner Colonisation acting without jurisdiction. It is submitted that even subsequent notification dated 18.1.94 issued by the State Government is not a general notification u/s 3(c) of the Act, authorising all Assistant Commissioner, Colonisation to act as a Collector in the matters of land acquisition. It is submitted that under the said notification the powers of the Collector has been conferred upon the Assistant Colonisation Commissioner only in respect of the acquisition of the land for Department of Colonisation. Accordingly, it is submitted by the learned counsel that in absence of a specific notification issued by the State Government authorising Assistant Commissioner Colonisation to discharge the functions of the Collector under the Act , the inquiry conducted u/s 5A of the Act stands vitiated. Lastly, learned counsel urged that the State Government has even not applied its mind to the report submitted by the Assistant Commissioner Colonisation in terms of the provisions of Section 5 A so as to form an opinion regarding the alleged public purpose or the suitability of the land for the purpose it is sought to be 6 acquired and therefore, the notification u/s 6 issued by the State Government deserves to be quashed and set aside for this reason also. In this regard, the learned counsel has relied upon decisions of the Hon'ble Supreme Court in “M/s Hindusthan Petroleum Corporation Limited vs. Darius Shapur Chennai”, (2005) 7 SCC, 627 and in “Nandeshwar Prasad and Others v. U.P. Government and Others” AIR 1964 SC 1217. 4. Per contra, Mr. G.R. Punia, the learned Additional Advocate General submitted that the lands are sought to be acquired for RSMM which is admittedly a Government company not covered by the expression “company” as used under the Act. Learned Additional Advocate General submitted that a government company as defined in Section 617 of the Companies Act stands specifically excluded from the definition of the “company” as defined under clause (e) of Section 3 of the Act therefore, Chapter VII of the Act which deals with the acquisition of the land for the company is not attracted in the matter. It is submitted that a Government company registered under the provisions of Section 617 of the Indian Companies Act falls within the definition of “Corporation owned and controlled by the State” within the meaning of Clause (cc) of Section 3 of the Act and as per sub-clause (iv) of Clause (f) of Section 3 , the provision of the land for a corporation owned or controlled by the State is deemed to be for public purpose and therefore, the land sought to be acquired for a government company is treated to be for public purpose and it is not even required to be mentioned in the notification that the land is proposed to be acquired for public purpose. Learned Additional Advocate General further submitted that no objections were raised by the petitioners against the acquisition within the stipulated period and therefore, they cannot be permitted to question the validity of the enquiry conducted in terms of Section 5 A of the Act. It is urged that the report submitted by the Land Acquisition Officer-cum- Assistant Commissioner Colonisation cannot be said to be without jurisdiction inasmuch as, the Land Acquisition Officer/Assistant 7 Colonisation Commissioner, concerned stands specifically authorised by the State Government to discharge the function of the Collector under the Act vide notification dated 2.5.87/18.1.94. Drawing the attention of the court to the notification dated 7.4.07 issued u/s 4 of the Act, learned Additional Advocate General submitted that the persons interested were directed to file their objections, if any, in writing within a period of 30 days before the Land Acquisition Officer, therefore, the contention raised by the learned counsel for the petitioners that the Land Acquisition Officer was not authorised to discharge the function of the Collector under the Act is devoid of any merit. Learned Additional Advocate General submitted that before initiating the land acquisition proceedings for acquiring the land in question in favour of RSMM for excavation of the minerals lignite, the availability of the lignite in the mining area has been ascertained and only thereafter, the notification u/s 4 has been issued. That apart, it is submitted that by virtue of provisions of Section 4 of the Act of 1957, the general restrictions or undertaking prospecting and mining operations are not at all applicable to a government company. Showing the reports of the Land Acquisition Officers available on record of the land acquisition proceedings, learned Additional Advocate General submitted that the declaration under Section 6 has been issued only after due consideration of the reports. Accordingly, it is submitted that the land acquisition proceedings do not suffer from any infirmity or illegality warranting interference by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. 5. Mr. M.R. Singhvi, learned counsel appearing on behalf of the RSMM while adopting the arguments advanced by learned Additional Advocate General further submitted that the issue with regard to acquisition of land in respect of the companies has been considered by the Hon'ble Apex Court threadbare in the case of “Sooraram Pratap Reddy & Others Vs. District Collector, Ranga Reddy District & Others” 2008 (4) RLW 2794, wherein the 8 parameters for interference in land acquisition proceedings initiated for acquisition of the land for development of infrastructure in the larger public interest have been laid down. It is submitted by learned counsel that the land sought to be acquired for the Government company is deemed to be a public purpose but even otherwise, if a company is chosen to undertake the project for development of infrastructure in the larger public interest, then, it will be treated to be a public purpose. Learned counsel submitted that acquisition of land for a Government company is out of purview of part VII of the Act. In support of his contention, learned counsel has relied upon a decision of this Court in “Hanuman Singh & 4 Ors. Vs. State of Rajasthan & Ors.” 2009 (1) DNJ (Raj.) 103, wherein this Court held that the planned development of the industrial area by way of systematic development of land and its disposal is directly a public purpose and the acquisition of the land for a Government company like RIICO is outside the purview of Part VII of the Act. Replying the contention of the learned counsel for the petitioner regarding the validity of proceedings under Section 5A and submission of report by the Assistant Commissioner, Colonisation, unauthorisedly, learned counsel submitted that admittedly none of the petitioners had filed any objections under Section 5A of the Act, against the land acquisition proceedings, therefore, they are not entitled to question the validity of the enquiry under Section 5A. Learned counsel submitted that the petitioners having failed to raise any objections, the declaration u/s 6 must be deemed to be in force so far as they are concerned. In support of his contention, learned counsel has relied upon decisions of Supreme Court in “ Delhi Administration Vs. Gurdeep Singh Uban & Ors.” AIR 1999 SC, 3822 and “Aircraft Employees' Co-operative Society Ltd. Vs. Secretary, Rural Development and Panchayat Raj Govt. of Karnataka & Ors.” AIR 1996 SC, 350. Drawing the attention of the court towards the various documents placed on record, learned counsel submitted that availability of mineral was ascertained after due survey incurring huge 9 expenditure and even the mining plans stand already approved by the Government of India. The learned counsel submitted that the mineral lignite to be excavated from the mining area in question shall be used for a prime project of the State for generation of the electricity. Accordingly, it is submitted that the contention of the learned counsel for the petitioner that the land acquisition proceedings have been initiated without ascertaining the availability of mineral and it lacks the public purpose is absolutely baseless. 6. I have considered the rival submissions and perused the material on record. 7. The first question comes for consideration of this court is as to whether the proceedings initiated for acquisition of the land for the RSMM at its own costs without complying with the provisions of part VII of the Act and Rule 4 of the Rules of 1963 stand vitiated. 8. Indisputably, part VII of the Act deals with the acquisition of land at the instance of a “company”. The expression “company” has been defined under clause (e) of Section 3 of the Act which reads as under:- “(e) the expression 'Company' means- (i) a company as defined in section 3 of the Companies Act, 1956(1 of 1956), other than a Government company referred to in clause (cc); (ii) a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, other than a society referred to in clause (cc); (iii) a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, other than a co-operative society referred to in clause (cc); 9. As per clause (cc) of Section 3 defines expression “corporation owned or controlled by the State” in the following terms:- “(cc) the expression “corporation owned or controlled by the State” means any body corporate established by or under a Central, Provincial or State Act, and includes a Government company as defined in section 617 of the Companies Act, 1956(1 of 1956), a society registered under the Societies Registration Act, 1860(21 of 1860), or under any corresponding law for the time being in force in a State, being society established or administered by Government and a cooperative society within the meaning of any law relating to cooperative societies for the time being in force in any State, being a cooperative society in which not less than fifty-one per centum of the 10 paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments;” 10. Thus, the conjoint reading of Section 3(e)(i) and Section 3(cc) makes it abundantly clear that a “government company” as defined in Section 617 of the Companies Act, 1956 is included within the definition of “Corporation owned and controlled by the State” and consequently, it does not fall within the definition of the “company” . In this view of the matter, the procedure laid down under Chapter VII of the Act which deals with the acquisition of the land for company as defined under clause (3)(e) cannot be made applicable for acquisition of the land at the instance of respondent RSMM which is admittedly, a government company registered under the provisions of the Act of 1956. 11. The contention of the learned counsel that since the land is being acquired for the RSMM at its own cost therefore, the procedure laid down under Chapter VII has to be followed is also devoid of any merit. Undoubtedly, by virtue of proviso to sub-section (1) of Section 6 of the Act no declaration can be made unless the compensation to be awarded for acquisition of the property is to be paid by a company or wholly or partly out of public revenues or some fund controlled or managed by the local authority. A conjoint reading of Section 6 of the Act and the provisions contained in part VII of the Act leads to the conclusion if the property is sought to be acquired at the instance of the company simplicitor for its benefits then, the cost of the acquisition shall be borne by the company. Similarly, the declaration for acquisition for a public purpose also cannot be made unless the compensation wholly or partly is paid out of public revenues or some fund controlled or managed by a local authority. But in any case, the requirement of the payment by the compensation by the company shall not apply to the acquisition of the property in favour of a government company to which provisions contained in Part VII of the Act do not apply. As a matter of 11 fact, this stands further clarified by Explanation II attached to sub-section (1) of Section 6 of the Act which specifically provides that where the compensation to be awarded for property sought to be acquired is to be paid out of the funds of the corporation owned or controlled by the State , such compensation shall be deemed to be compensation paid out of public revenues. The similar question came up before the consideration of this court in Hanuman Singh's case (supra) wherein after examining the various provisions and the ratio of the decision of the Hon'ble Supeme Court in Devinder Singh's case (supra) heavily relied upon by the learned counsel for the petitioners in support of his contention , this court held :- “18. The edifice on which the argument in these writ petitions has been developed by the petitioners is the principle explained by the Hon'ble Supreme Court in Devinder Singh's case (supra) that the decisive test is the source of funds to cover the costs of acquisition and in the present case, for the notification under Section 4 having clearly stated that costs shall be borne by the company i.e., RIICO only, no state fund is involved and hence, the acquisition being for the company, Part VII was required to be complied with. The submission is not correct. It may be pointed out that the acquisition proceedings in Devinder Singh's cacse(supra) were not relating to a Government company but were specifically and indisputably for a private company. In the present case, the notification dated 16.2.2006 clearly states that RIICO is a Government company under Section 617 of the Act of 1956 and such statement has not been questioned by the petitioners; and, as noticed above, for the Government company , Part VII does not apply. This apart, there is yet another aspect unfailingly pointing