1 CWP No.6898/2006 (SEZ) CWP No.9601/2006 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.6898/2006 Gautam Estates Pvt. Ltd. and others Versus The State of Rajasthan and others S.B.CIVIL WRIT PETITION NO.9601/2006 Nandan Green Houses Ltd. Versus The State of Rajasthan and others Date of order ::: September 26,2008 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Abhay Kumar Bhandari, Sr.Advocate with Mr.Anant Bhandari and Mr.Anil Mehta, for the petitioners Mr.Bharat Vyas, Addl. AG for the State & JDA Mr.Virendra Lodha, Mr.Paras Kuhad with Ms.Susan Timothy, for the respondents REPORTABLE BY THE COURT (1) The acquisition proceedings have been challenged by both the petitioners on common facts and law relating to the notifications issued u/s 4 and 6 respectively, of the Land Acquisition Act,1894 (in short the `Act of 1894') for establishment of Special Economic Zone (SEZ)as well as violation of Sec. 5A of the Act of 1894 before issuance of the notifications u/s 6 of the Act of 1894. One notification u/s 4 of the Act of 1894 was issued on 20.12.2005 and two notifications u/s 6 of the Act of 1894 were issued on 29.4.2006 and 30.10.2006.Further common facts of the suitability of the acquisition of Abadi land are involved in both the cases. Therefore, both the cases have been heard together and are being decided together. 2 CWP No.6898/2006 (SEZ) CWP No.9601/2006 (2) At the outset, it is appropriate to mention that in Gautam Estates, its land falls within the actual requirement of SEZ whereas the land/fully developed farm houses of Nandan Greens is surplus to the actual requirement of SEZ which is sought to be acquired for grant of the same for allotment to expropriated owners (Khatedars) but the respondents have submitted that the said land is not surplus land as the same is required for allotment to the expropriated owner which is also a public purpose. (3) The parties have urged legal issues in regard to Sec.5A of the Act of 1894 and the additional facts regarding the nature of the land and building constructed thereon and their requirement, therefore, facts of the writ petition, reply along with additional affidavit are being referred and dealt with hereunder separately. S.B.Civil Writ Petition No.6898/2006 Gautam Estates Pvt.Ltd. V.State of Raj. (4) It is stated in the writ petition that the petitioners are owners of Abadi and agricultural land situated in village Nevta, Tehsil Sanganer 3 CWP No.6898/2006 (SEZ) CWP No.9601/2006 details whereof has been mentioned in para 3 which is as follows: माम नेवटा तहसील सांगानेर की भूिम का िववरण ब.सं. खसरा नम् बरान कुल रकबा संपिरवतर्न आदेश िदनांक 90 बी हेतु आवेिदत क्षैऽफल है.मे. भू-ः वामी का नाम 1. 186, 187, 183/2568, 18/2502, 189/2601, 189, 190, 191,248, 247, 252, 255 7.76 सम् पूणर् 04/11/92 -- गौतम एः टेटस ूाईवेट िलिमटेड 2 1113/2602, 1023, 1024, 1027, 1028, 1118, 1113/2605, 1088, 1089, 1030, 1031, 1113/2606 6.77 सम् पूणर् 14.7.93 24.8.93 -- मीणा कॉलोनी गृह िनमार्ण सहकारी सिमित िलिमटेड जयपुर 3 1121 0.11 सम् पूणर् 24.8.93 -- मीणा कॉलोनी गृ. िन.स.स. िल. िचरंजी लाल खैतान चन् दना, तनु खेतान 4 1101, 1104, 1099,1103,/2608, 275, 276, 277 5.12 सम् पूणर् -- 5.12 फतह चन् द कृिष ूाईवेट िलिमटेड 5 1102, 1079, 1084, 1091, 1093, 1094 5.28 1/3 -- 1.7600 फतह चन् द कृिष ूाईवेट िलिमटेड 6 100, 101, 102, 103, 104, 105, 206, 207, 208, 215, 218, 219, 220, 1068, 1069, 1074 4.39 1/4 -- 1.0975 फतह चन् द कृिष ूाईवेट िलिमटेड 7 209, 210, 211, 212, 213, 216, 217, 1064, 1065, 1066, 1067 3.10 ½ -- 1.550 फतह चन् द कृिष ूाईवेट िलिमटेड 8 208, 215, 1068, 1069, 1074 1.04 1/4 -- 0.260 गौरव जैन 9 115, 116, 117, 118, 19, 120, 123, 124, 125, 126, 127, 128, 129, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144 8.45 1/3 -- 2.8167 गौतम एः टेटस ूाईवेट िलिमटेड 4 CWP No.6898/2006 (SEZ) CWP No.9601/2006 ब.सं. खसरा नम् बरान कुल रकबा संपिरवतर्न आदेश िदनांक 90 बी हेतु आवेिदत क्षैऽफल है.मे. भू-ः वामी का नाम 10 861, 862, 863, 864, 865, 866, 867, 872, 873, 874, 875, 876, 877, 878, 879, 880, 881, 882, 883, 884, 885, 886, 887, 888, 889, 890, 891, 892, 893, 894, 895, 896, 897, 898, 899, 900, 901, 902, 1020, 1021, 1022, 1025, 1026, 1032, 1033, 1116, 1117, 1122, 1123, 124, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 1132, 1133, 1134, 1136, 1137, 1138, 1139, 1140, 1141, 1142, 1143, 1220, 1221, 1222, 1223 24.62 2/5 -- 9.8480 गौतम एः टेटस ूाईवेट िलिमटेड फतह चन् द कृिष ूाईवेट िलिमटेड 11 1078, 1095, 1096, 1097, 1098, 1092/2676 3.04 सम् पूणर् -- 3.0400 गौरव जैन पुऽ ौी सुरेश जैन 12 99, 106, 107, 108, 196 2.53 सम् पूणर् -- 2.5300 ौीमती ूेम जैन पत् नी ौी सुरेश जैन (5) The petitioners started development over the land by framing a residential scheme and submitted the same to Gram Panchayat for approval. The petitioners started laying down roads, demarcations and boundary walls over the land for development. The Gram Panchayat however restrained the petitioners from doing any further activity till the plans are approved. The petitioners immediately stopped the work, but the Gram Panchayat did not pass any order for approval of the plans and in the 5 CWP No.6898/2006 (SEZ) CWP No.9601/2006 meantime,the area came to be vested with the JDA. (6) The village Nevta was included in the JDA limits and the bye laws of JDA became applicable on the petitioners land as per the provisions of JDA Act. The Sector Plan was not prepared by JDA for village Nevta as such the petitioners could not applied for approval of scheme to JDA. However, recently, JDA without there being any sector plan started issuing NOC and conversion orders under section 90-B of the Act, the petitioners 1 to 8 coming to know about the said fact entered into an understanding with petitioners no.9 for development of a residential colony in collaboration and applied for NOC on 18.5.2005 through petitioners No.9 and petitioners No.1 to 8 applied for conversion u/s 90-B on 29.11.2005. (7) On 15th June, 2005 a proposal was drawn by Deputy Commissioner-II, JDA for acquisition of 13,000 Bighas land between Ajmer Road and Sanganer at the behest of some higher officer as there was no decision by JDA under section 39(1) for making any scheme like SEZ special economic zone. The proposal of the acquisition was forwarded on the same day by the Deputy Commissioner to Secretary, JDA. The Secretary, 6 CWP No.6898/2006 (SEZ) CWP No.9601/2006 JDA pointed out that lands for which action under section 90-B have been taken would be required to be regularised. It was also pointed that the lands could be in the name of JDA if 90-B order has been passed or in the name of Khatedar if 90-B order is yet to be passed. Therefore, in the proposal such lands, which are required to be regularised should be identified. The proposal of the Secretary, JDA was approved by the Commissioner on 16th of June, 2005. On 16th June, 2005 the Additional Commissioner (West) JDA for this first time mentioned in the file that the purpose of acquisition would be for IT, Biotech city and Knowledge City and forwarded the file to Deputy Commissioner-11, JDA. It is further stated in the writ petition that even though acquisition proceedings were initiated but till then the JDA and its officers were not knowing the purpose of acquisition. The news about the proposed acquisition of land and SEZ was issued on 14.6.2005 and published on 15.6.2005 in Dainik Bhasker, whereas the proposal of acquisition was prepared on 16.6.2005, which shows that the proposals were being prepared without any application of mind and on predetermined manner due to extraneous reasons. 7 CWP No.6898/2006 (SEZ) CWP No.9601/2006 (8) On 16th of June, 2005 the Deputy Commissioner-11 (for short DC) as per directions of the Secretary para 18/N prepared noting that data has been prepared accurately and the lands under Section 90-B proceedings have been identified and note has been appended to the corresponding Khasra numbers. (9) The DC-11 forwarded the file to AC (West) on the same day. The AC (West) had pointed out that decision as per 39(1) for the acquisition and preparing of scheme has to be taken by the authority and forwarded the file on the same day to the A.C.(West). (10) On 16th June,2005 itself Secretary, JDA noted that as per directions proposal for acquisition has been prepared though proposed scheme has not been approved under section 39(1) which is to be generally done first before acquisition, however due to urgency of acquisition proceedings as directed the proposal is being sent to Commissioner before sending to the Government and forwarded the file to the Commissioner, JDA. The noting of Secretary,JDA are as follows: “On the basis of directions given the proposals have been prepared for moving it to Govt. Though we have not 8 CWP No.6898/2006 (SEZ) CWP No.9601/2006 yet notified the proposed schemes u/s 39 (1), this has to be generally done first before moving for acquisition. Since D.S.U.D. Has pointed out so in the discussion, and action u/s 39(1) can take time and then that has to be submitted to authority, due to urgency of the starting of acquisition proceedings as directed, the covering letter mentions that the action u/s 39 (1) is being taken and also the fact of changing the land use for the proposed schemes. Thus the proposal and covering letter prepared as per direction is being submitted for approval before sending to Govt. Sd/- 16.6.” (11) On 16th June, 2005, Commissioner,JDA sent the file and mentioned that the proposal with covering letter be issued. The Secretary, JDA on 16th June, 2005 issued the letter of proposed acquisition of land to the Government along with the proposal. The said proposal was pending with the State Government for acquisition, however, para 31/N was drawn on 18th July, 2005 by DC-11,JDA. The DC pointed out that earlier the alignment of Ring Road was not fixed, 9 CWP No.6898/2006 (SEZ) CWP No.9601/2006 however, Commissioner has directed that the proposal for SEZ should be adjacent to Ring Road according to desire of Mahindra City and others and now because the alignment of ring road has been fixed. Therefore, the proposal, which was sent along with plan needs to be recalled. The DC forwarded the file with the said notings to AC (W). (12) On the same day i.e. on 18th July, 2005 the said notings were approved by the AC(W), Secretary and JDC. (13) On 18th July, 2005 itself the file of the acquisition proposal was brought back by the DC- 11 personally. (14) The DC-11 after getting the acquisition proposals back from the State Govt. on the same day i.e. 18th July, 2005 recorded in para 32 to 36/N that Omax Group has applied for NOC to purchase land in villages Sarangpura, Bhamboriya, Bagru Khurdand Thikariya measuring 877 bigha. The Omax Group could not be given NOC because of the stay of the State Government and Omax now has represented that they have already purchased 500 Bigha and, therefore, the proposed 877 bigha be dropped from the acquisition. It was also pointed out that land proposed for SEZ was around 12000 bigha out of which 4800 bigha has been demanded and Omax is only developing 10 CWP No.6898/2006 (SEZ) CWP No.9601/2006 colony in 877 bigha land, hence forwarded the representation for consideration and decision for keeping Omax land out of acquisition to higher authorities. (15) There was no mention of Ring Road nor changing the proposed area and the entire exercise was done only to exclude the lands of OMAX. On 18th July, 2005 the proposal for acquisition was dropped and the file was signed on the same day by JDC, Secretary, Minister, AC (W) and DC-11 and NOC was issued to Omax on 19th July, 2005. (16) Section 4 notification was issued on 20th December, 2005 and published on 22nd December, 2005 in gazette notification. As per the notification the lands of Villages Jhai, Bhamboria, Bagru Khurd, Tilawas, Kalwara, Khatwara, Nevata, Narsinghpura Dadia and Palariparsa Tehsil Sanganer were proposed for special economic zone required by JDA. (17) It is further stated that they were shocked to know that their lands have been included in SEZ and filed objections on 20.1.2006 which were recorded in receipt register on 25.1.2006 i.e. within 30 days of the publication of Section 4 (1) notification and submitted that the lands belonging to the petitioners are mainly recorded as residential land, which were duly converted 11 CWP No.6898/2006 (SEZ) CWP No.9601/2006 long back and the petitioners have applied for conversion under Section 90-B for the remaining agricultural lands and the applications are under process and the petitioners' land should be excluded from the acquisition. It was also stated that lands of influential persons like Omax company etc. have been excluded from the acquisition, which is highly discriminatory in nature. It was also mentioned by the petitioners that the lands of the Omax company were converted to residential after the proposal was sent by the JDA to the State Government. It is important to state here that the lands belonging to the Omax company falls in the villages which are under acquisition although their lands have been excluded. The petitioners also questioned the policy of the State Government in allotting 25% developed land in lieu of compensation as the land of the petitioners was residential land and therefore, sought clarification whether the land of the petitioners would be treated as agricultural land. The petitioners also submitted that its land is residential and developed and, therefore, the same may be excluded from acquisition. (18) On 25th April, 2006 the petitioners were present before the Land Acquisition Officer and 12 CWP No.6898/2006 (SEZ) CWP No.9601/2006 he was given the copy of reply filed by Jaipur Development Authority. The Land Acquisition Officer noted in its proceedings that the relevant Jamabandi is filed by objectors have been placed in their respective files and further noted that the file be placed for submitting report under Section 5-A. It is stated in the writ petition that no date was given to the petitioners nor any notice was served nor any date was fixed for hearing under Section 5-A by the Land Acquisition Officer. (19) The JDA in its reply before the Land Acquisition Officer stated that the petitioners has not submitted any proof whether the land is Abadi or not whereas the petitioner stated in the writ petition that the Land Acquisition Officer without considering material on record i.e. Zamabandies filed by the petitioners considered the objections filed by petitioners in mechanical manner. (20) The Land Acquisition Officer without hearing the petitioners and any of its representatives or without giving any notice of hearing on 27th April, 2006 all of sudden contrary to the mandatory provisions of the Land Acquisition Act regarding personal hearing under Section 5A disposed of the objections and 13 CWP No.6898/2006 (SEZ) CWP No.9601/2006 incorporated in the report under Section 5-A which was forwarded to the State Government along with decision on the same day i.e. 27th April, 2006. (21) That DS-II on the same day on 27th April, 2006 also reiterated the same language used by ALR in its report and recommended for issuing Section 6 notification. The DS-II thereafter forwarded the file to the Principal Secretary, UDH on the same date. (22) As is clear from the above the Principal Secretary, UDH on the same day considered the file and recommended to exclude the land of Nandan Green Houses Limited and forwarded the file for issuing Section 6 notification. (23) That immediately on the same day on 29th April, 2006 notification under Section 6 was issued by the State Government whereby the lands belonging to the petitioners were also included in the declaration, whereas the land of Nandan Greens were excluded. (24) It is also stated that the land in acquisition is the surplus requirement to the actual requirement for SEZ, as per the initial proposal of the respondent Jaipur Development Authority (JDA). It is further stated in the writ petition that the petitioners have deposited conversion charges of the agricultural 14 CWP No.6898/2006 (SEZ) CWP No.9601/2006 land and part of the land has already been converted and is in the process of development for the residential use. S.B.Civil Writ Petition No.9601/2006 Nandan Green Houses Ltd.V. State of Rajasthan (25) It is stated in the writ petition that the petitioner purchased 16.1 Hectare uncultivated land from the erstwhile owner situated in Village Bagru Khurd, Tehsil Sanganer, Distt. Jaipur. The petitioner after purchasing the land, got the same recorded in its name in the revenue record except Khasra No.716 and 718. Part of the land of Khasras No.703, 704, 713, 716, and 717 measuring 1900 Sq. Meters was converted for commercial use by the SDO, Jaipur vide its order dated 7.6.1997. The other part of the land of Khasras No. 677, 678,680, 681, 698, 699,700, 701, 702, 704, 705, 709, 714, 715, 716, 718, 719, 720 and 721 measuring 4000 Sq.Meters was converted by the SDO, Jaipur vide its order dated 18.11.1997, for residential use. On 22.3.1998 and 23.3.1999, the petitioner sold part of the land in Khasras No.703, 704, 713, 716 and 717 with partly constructed club houses to SWESS Club and Retreat Pvt. Ltd.- a highly modernised club and farm house and small farm houses were developed by the petitioner and the 15 CWP No.6898/2006 (SEZ) CWP No.9601/2006 said Swess Club and Retreat Pvt.Ltd. on the aforesaid land and the petitioner sold farm and clubhouse to the various persons much before the start of acquisition. (26) On 25.7.2003, Rajasthan Special Economic Zone Development Act, 2003 came into force. The State Government intended to establish Special Economic Zone (SEZ) for which 300 Acres of land was required on the Ajmer Road, Jaipur. The State of Rajasthan entered into an agreement with M/s. Mahindra and Mahindra for development of special economic zone. On 4.7.2005, a Memo of Understanding arrived at between the parties – M/s. Mahindra and Mahindra and the State of Rajasthan for establishment of SEZ. On 13.10.2005, the JDA recommended to the State Government for conversion of land of Nandan Green Houses Ltd. from agriculture to residential. (27) On 2.12.2005, a letter was written by the JDA to the State Government for acquisition of land of nine villages under section 45 of the Jaipur Development Authority Act, 1982 (in short `the JDA Act'). On 20.12.2005, a notification under section 4 of the Act of 1894 was issued for acquisition of the land of nine villages for the purpose of SEZ and in this notification, 16 CWP No.6898/2006 (SEZ) CWP No.9601/2006 land of the petitioner known as Nandan Green Houses Ltd. was also included. On 22.12.2005, the land of Nandan Green Houses Ltd. was converted by the JDA for residential purpose. On inviting objections u/s 5A of the Act of 1894, the petitioner submitted objection under section 5A of the Act of 1894 before the Land Acquisition Officer. JDA submitted its reply before the Land Acquisition Officer and it was admitted by it that those lands which are entered as Abadi is not subject matter of acquisition and only those lands which are not recorded as Abadi in the record available with the JDA has been included in the notification u/s 4 of the Act of 1894. On 27.4.2006, the Land Acquisition Officer submitted its report and recommended that it is not feasible to acquire the land of the petitioner for the purpose of SEZ. He also observed that in case of acquisition, compensation could run in Crores. The report of the Land Acquisition Officer was considered at various levels by the State Government. The Principal Secretary, Urban Development & Housing Department (UDH) observed that it was not proper to issue notification u/s 6 of the Act of 1894 with regard to the land of the petitioner and ultimately when the 17 CWP No.6898/2006 (SEZ) CWP No.9601/2006 notification dated 29.4.2006 was issued, the land of the petitioner except Khasra No.716 and 718, was not included. On 19.5.2006 the JDA approved the building plan of Nandan Green Houses Ltd. On 26.6.2006, the JDA sent the factual report to the Principal Secretary, UDH admitting that the land of Nandan Green Houses Ltd. is out of the area required for development of SEZ by the RIICO and this land is in an area which is required to be given to the Khatedar by way of compensation. The State Government again issued notification u/s 4 of the Act of 1894 of the some more land on 3.7.2006. This land does not include the land of the petitioner. (28) The exclusion of the land of Nandan Green Houses Ltd. in the notification dated 29.4.2006 is said to be highlighted by the Media on the issue of discrimination. It is further stated in the writ petition that on account of the said issue, the State Government has issued notification u/s 6 of the Act of 1894 wherein the land of the petitioner first notified under section 4 of the Act of 1894 has been included. Thus, the petitioner has challenged the notifications dated 30.12.2005, 29.4.2006 and 30.10.2006. It is stated in the writ petition that acquisition of the developed land of 18 CWP No.6898/2006 (SEZ) CWP No.9601/2006 Nandan Green Houses Ltd. which has been sold also, is contrary to the provisions of Sec. 4 read with Sec.6 of the Act of 1894, mala fide, arbitrary,without application of mind, colourable exercise of power with the last submission that the rehabilitation of the expropriated owner by dislodging the successor in title will not amount to rehabilitation etc. and the same is against the public policy. (29) The respondents in their reply as well as in the additional affidavit and counter affidavit made it clear that the establishment of SEZ is in public interest and the three notifications – issued u/s 4 on 20.12.2005, and two notifications issued u/s 6 on 29.4.2006 and 30.10.2006 are in public interest and the procedure of the Act of 1894, Rajasthan Special Economic Zone Development Act, 2003 as well as Central Enactment - Special Economic Zone Act, 2005 have been followed. They have also made it clear that at the proposal of the JDA, the land was acquired for handing it over the RIICO for the establishment of SEZ and after acquisition, possession of the same was handed over to M/s. Mahindra World City in respect of which MOU as well as agreement were executed between the parties. The respondents have also justified 19 CWP No.6898/2006 (SEZ) CWP No.9601/2006 their action of requirement of the land more than the actual requirement for establishment of the SEZ by stating that the rehabilitation of the expropriated owner is also in public interest. (30) On legal aspect, it is stated in the writ petition that the impugned notifications u/s 4 and 6 of the Act of 1894 so far as they relate to the land in question are violative of the mandatory provisions of Sec. 4(1) of the Act of 1894. In case of Gautam Estates, it has been specifically submitted that no notice of personal hearing u/s 5A of the Act of 1894 was given to them whereas in the case of Nandan Green, it was submitted that their case was recommended by the Land Acquisition Officer for de-acquisition and the same was accepted by the respondents while excluding the land at the time of issuing the first notification dated 29.4.2006 but separate notification u/s 6 of the Act of 1894 was exclusively issued for its land on 30.10.2006.The notifications u/s 4 and 6 of the Act of 1894 for surplus land have been issued mala fide, arbitrarily and without application of mind while exercising the power in colourable manner to give benefit to the Company as well as expropriated owner by 20 CWP No.6898/2006 (SEZ) CWP No.9601/2006 rehabilitating them at the cost of the person interested.