CW 7103/07 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1-Civil Writ Petition No.7103/2007 Sumer Khan & Ors. Versus State & Ors. 2-Civil Writ Petition No.5748/2008 Razak & Ors. Versus State & Ors. 3-Civil Writ Petition No.10648/2007 Phulu & Ors. Versus State & Ors. 4-Civil Writ Petition No.5749/2008 Yaqoob & Anr. Versus State & Ors. 5-Civil Writ Petition No.5750/2008 Saddiq & Ors. Versus State & Ors. 6-Civil Writ Petition No.4314/2008 Kamruddin & Ors. Versus State & Ors. 7-Civil Writ Petition No.2746/2008 Mahesh Tanwar Versus State & Ors. 8-Civil Writ Petition No.2747/2008 Indrish Versus State & Ors. 9-Civil Writ Petition No.9108/2007 Shyam Lal & Ors. Versus State & Ors. 10-Civil Writ Petition No.9107/2007 Rahisan & Ors. Versus State & Ors. 11-Civil Writ Petition No.6836/2007 Chirag Agarwal & Ors. Versus State & Ors. 12-Civil Writ Petition No.2518/2008 Hansa Ram & Anr Versus State & Ors. 13-Civil Writ Petition No.6249/2008 Jamil Ahmed & Anr Versus State & Ors. 14-Civil Writ Petition No.9240/2007 Yadram & Ors. Versus State & Ors. 15-Civil Writ Petition No.8312/2007 Chaun Khan & Ors. Versus State & Ors. 16-Civil Writ Petition No.1329/2008 Yusuf & Ors. Versus State & Ors. 17-Civil Writ Petition No.3371/2008 Tayyab Husain & Ors. Versus State & Ors. 18-Civil Writ Petition No.2632/2008 Surendra & Ors. Versus State & Ors. 19-Civil Writ Petition No.3412/2008 Shabhuddin & Ors. Versus State & Ors. 20-Civil Writ Petition No.9458/2008 Nain Singh & Ors. Versus State & Ors. 21-Civil Writ Petition No.7652/2007 Mohd. Islam & Ors. Versus State & Ors. 22-Civil Writ Petition No.9931/2008 Smt. Asmina Versus LAO & Ors. 23-Civil Writ Petition No.14157/2008 CW 7103/07 //2// Noor Mohd & Ors. Versus State & Ors. 24-Civil Writ Petition No.11411/2008 Yaqoob Khan Versus RIICO Ltd & Ors. /Reportable/ Date of Order ::: 02/04/09 Hon'ble Mr. Justice Ajay Rastogi For Petitioners: Mr. Bajrang Lal Sharma Sr. Counsel with Mr. CS Sharma for petitioner-Sumer Khan & Ors (CWP-7103/07). Sarva Shri RK Mathur, Rahul Tiwari, Azad Ahmed, BM Gurjar, & Mohd. Iqbal Khan, for petitioners in CWP-5748/08-5750/08 & Ors Mr. Prakash Chand, petitioner in person in CWP-9458/08 M/s Ishwar Jain, SS Sunda/Vipul Jaiman, M.Iqbal Khan, for petitioners (seeking compensation in CWP-11411/08, 9931/08, 14157/08) For respondents: Mr. GS Bapna, Advocate General with Mr. Veyankatesh Garg, for respondents-State Mr. Ajeet Bhandari, for respondents (RIICO) Mr. RB Mathur, for respondent (RIICO)-CWP-10648/07 Mr. NR Choudhary for respondents Intervenors: Mr. Raj Kamal Gaur for applicant-Kishanlal (intervenor)-CWP-10648/07 Sarva Shri Sudhir Jain & Amardeep Atwal for Prakash Thakuria, for intervenor in CWP-7103/07 & 7652/07 At joint request, since these petitions involve identical questions, were finally heard together and are being disposed of by this order. Instant petitions have been filed for quashing of - (1)notification dt.25/07/2006 published in Rajasthan Gazette dt.28/07/06 issued U/s 4 of Land Acquisition Act, 1894 (“L.A.Act”) whereby land measuring 483.84 hectares belonging to various Khatedars including petitioners herein was sought to be acquired by respondents for purposes of development of industrial area in respect of Rajasthan State Industrial Development & CW 7103/07 //3// Investment Corporation Limited (respondent- RIICO) which is a Company, owned & controlled by State Government; and (2)declaration dt.06/08/07 made U/s 6 of L.A. Act published in Rajasthan Official Gazette dt.10/08/07 and in daily news papers - Rajasthan Patrika & Arun Prabha on 09/08/07. Facts, in brief, relevant for deciding disputes raised herein are thus. Respondent (RIICO) had established an Industrial area situated in Bhiwadi (district Alwar) for which, hundreds of applications seeking allotment of industrial area were filed by persons interested in establishing industries in Bhiwadi, which were pending consideration; so taking note of large public interest to get investments in the State and to provide opportunity of employment to people, a proposal was sent by respondent (RIICO) to the State Government on 06/07/2006 for development of industrial area in three revenue villages (1) Khijarpur-Bilahera, (2) Kahrani and (3) Mundana of Tehsil Tijara, district Alwar. Taking note whereof, appropriate Govt. issued preliminary notification dt.25/07/06 U/s 4 of the Act which was published in Rajasthan Gazette dt.28/07/06 while in daily news papers Rajasthan Patrika & Sandhya Jyoti Darpan dt.30/07/06; and substance of notification was also affixed at conspicuous CW 7103/07 //4// places in the locality as alleged by respondents on 08/08/06 intending to acquire land measuring 483.84 hectares; which has seriously been disputed by petitioners and would be considered in later part of this judgment. However, by publication of notification U/s 4 of the Act, objections were invited from persons interested – in pursuance whereof, 141 objectors claiming themselves as persons interested in the land sought to be acquired U/s 4(1) for public purposes submitted their objections within time stipulated U/s 5A(1). After more than ten months, notice was published in daily news paper, Alwar Dainik Bhaskar dt.24/06/07 at the instance of Regional Manager RIICO that public hearing in regard to proceedings initiated for acquisition of the land measuring 483.84 hectares would take place on 25/06/07 in the Office of RIICO, Camp at Bhiwadi and persons/objectors who filed their objections to acquisition proceedings may appear in course of public hearing on 25/06/07 in between 10 AM to 5PM. However, Land Acquisition Officer (“LAO”) in order sheet of 25/06/07 recorded that Objections were submitted by persons interested during public hearing provided U/s 5A(2) and after holding further inquiry, submitted report CW 7103/07 //5// dt.24/07/07 recommending acquisition of proposed land notified U/s 4(1) of the Act except for some area where temples, mosque & Gurdwara besides large number of houses were situated, which the RIICO, itself declined for acquisition. After considering recommendations made by LAO, State Government made declaration U/s 6 of the Act on 06/08/07 for the land measuring 470.0067 hectares, which was published in Rajasthan Gazette dt.10/08/07 and so also in daily news papers-Rajasthan Patrika & Arun Prabha on 09/08/07; whereas declaration was affixed at conspicuous places of locality on 16/08/07. The LAO after issuance of notice to persons interested U/S 9 of the Act, sent the Award to the State Government for its approval on 13/06/08 and taking note whereof on 10/07/08, State Government approved the Award for compensation made by LAO for Rs.4,79,49,35,512/- and on the date of its approval by State Government, the LAO issued notification dt. 08/08/07 (Ann.R.2/1-CWP-10648/07). Original record was also placed by respondents for perusal as directed by this Court and before examining submissions made by respective parties, this Court would like to narrate certain facts emerging from the record. CW 7103/07 //6// (a) Notification U/s 4(1) dt.25/07/06 apart from being published in Rajasthan Gazettee dt.28/07/06 was also published in daily news papers of Rajasthan Patrika & Sandhya Jyoti dt.30/07/06; and that apart, this notification was affixed at conspicuous places in locality on 08/08/06 as is evident from the record, where signatures of Patwari Halka Santhalka, Sarpanch, Gram Panchayat, Kahrani, SDO Tijara, Patwari Shahrod, Asin of village Kahrani, Kamruddin Bilaheri, have been recorded - in support whereof, report of affixation of substance of notification dt.25/07/06 was sent by Sr. Regional Manager, RIICO, Bhiwadi vide letter No.4184 dt. 02/09/06 at p.99/C of LAO's record. (b) After objections were received from persons interested within thirty days as required U/s 5A(1), for about ten months, no efforts were made by the LAO who drew order sheet for the first time on 23/06/07 that report has to be made U/s 5A, notice be published for holding public hearing on 25/06/07 and directed Regional Manager, RIICO, Bhiwadi vide letter dt.23/06/07 sent by Fax that notice may be published for holding public hearing by LAO on 25/06/07 during camp at Bhiwadi – in pursuance whereof, Regional Manager RIICO, published notice in Alwar Bhaskar CW 7103/07 //7// of 24/06/07 that the LAO will hold Camp court at Bhiwadi for public hearing on 25/06/07. (c) On 25/06/07, the LAO recorded order sheet that Khatedars/persons interested were heard with regard to their objections - "Ǒहतधािरयो Ʈारा ूः तुत आक्षेपो के सम् बन् ध में उनका पक्ष सुना गया" . In the order sheet dt.25/06/07, the LAO also recorded that physical survey was also made with the assistance of concerned Patwari; (d) As per order sheet dt.12/07/07, written objections of objectors were sent vide letter dt.13/07/07 to the RIICO Office at Bhiwadi calling for parawise comments in pursuance whereof, Senior Regional Manager RIICO Bhiwadi sent the same vide letter No. 2535/dt. 24/07/07, on which date, itself vide letter No.662/dt.24/07/07, the LAO sitting at Head quarter, Jaipur sent its report to the Secretary Industries for further necessary action. It is relevant to mention that apart from order sheet dt.25/06/07 where it has been recorded that Khatedars/persons interested were heard, there is no record made available to this Court by which it could be inferred as to who were those objectors/persons interested having appeared before LAO on 25/06/07 date of public hearing while if they appeared what were their CW 7103/07 //8// objections and how their objections were dealt with by LAO. Neither it is being disclosed from report dt.24/07/07 nor it is available from the entire record either of LAO or of State Government made available for perusal of this Court. (e) After report dt.24/07/07 was received in Office of State Government, Deputy Secretary prepared its Note dt.31/07/07 examined by principal Secretary Industries Department on 03/08/07, which is almost reproduction of report of LAO. However, Minister of Industries called upon for discussion and thereafter on 06/08/07 final proposal was prepared and placed before Minister of Industries for approval. The Minister of Industries, however, approved but looking to the procedure being adopted in initiating matter for acquisition, put a final Note in order sheet of 06/08/07, “It appears that proper application of mind was not made, the care must be taken in future”. On same date (06/08/07, declaration was made U/s 6 which was published in news papers Rajasthan Patrika & Arun Prabha dt.09/08/07 while in Rajasthan Gazettee dt.10/08/07 – substance whereof was also affixed at conspicuous places in locality on 16/08/07. (f) After issuance of notice to persons CW 7103/07 //9// interested U/s 9 of the Act, the LAO sent the Award to the State Government for its approval on 13/06/08 and taking note whereof, on 10/07/08 State Government approved the Award and on the date of its approval, the LAO issued notification dt.08/08/07 (Ann.R.2/1-CWP-10648/07). I have considered rival contentions of learned Counsel for parties and with their assistance, examined material on record. Counsel for petitioners submits that Notification dt.25/07/06 U/s 4(1) of the Act, was published in official gazette dt.28/07/06 and so also in two daily newspapers dt.30/07/06 circulated in locality, but substance of notification was not affixed at convenient places in the said locality where the land proposed to be acquired is situated, which as alleged by respondents, was affixed on 08/08/06 which according to petitioners, was purportedly shown of having affixed on 08/08/06 with intent to make declaration U/s 6 of the Act within one year from publication of notification U/s 4(1) of the Act, while as per Counsel for petitioners, in fact substance of notification was never affixed as convenient places in the said locality which was the mandatory requirement U/s 4(1) - in absence whereof, very action of respondents in making CW 7103/07 //10// declaration U/s 6 on 06/08/07 is void and nonest. Submission of Counsel for petitioners, in the opinion of this Court is of no substance for the reasons that respondents in their reply at page 235 has inter-alia averred that substance of notification U/s 4(1) was affixed at conspicuous/ convenient places in the said locality on 08/08/2006, and this fact stands corroborated from original record as referred to (supra). Affixing public notice containing substance of notification at conspicuous places in locality on 08/08/06 is further fortified from the fact that in all 141 objectors submitted their objections which clearly manifests that notification U/s 4 (1) of the Act was widely circulated. Object behind publication of substance of notification in locality is that persons interested may know that there is a proposed acquisition and if wide publicity is not given to the notification U/s 4(1), persons interested may not be able to file their objections, if aggrieved to proposed acquisition and in absence of such publication of substance of notification at convenient places in the locality, it would result in denying an opportunity as afforded by S.5A which confers a valuable right to the objectors whose land is sought to be acquired. CW 7103/07 //11// It is the declaration which is to be made as per proviso (ii) to S.6(1) of the Act within one year of date of publication of notification U/s 4(1), if the State Government is satisfied after considering the report made U/s 5A of the Act that the land is needed for a public purpose or for a company as the case may be. However, later publication of declaration U/s 6 in news paper or official gazette has got no reference/relevance to the publication as has been considered by Apex Court in SH Brangappa Vs. State of Karnataka (2002(1) SCC 538) ad infra : “7. Declaration under section 6 is preceded by issuance of a notification under Section 4 which indicates the intention of the Government to inter alia acquire land for a public purpose. Pursuant to the issuance of the same, objections can be filed and after hearing the same, Section 6(1) enables the appropriate authority if it is satisfied, after considering the report made under Section 5A of the Act, that if any particular land is needed for a public purpose, then a declaration is to be made under the signature of an appropriate officer. Where notification under Section 4 is published after the commencement of the Land Acquisition Amendment Act, 1984, as in the present case, proviso (ii) requires that such a declaration CW 7103/07 //12// shall not be made after the expiry of one year from the date of the publication of Section 4 notification. “8. We wish to clarify that the words "publish" and "from the date of publication of the notification" occurring in proviso (ii) to Section 6 (1) refer to the publication of the Section 4 notification and have no reference to the publication of any notification under Section 6. Under Section 6(1), it is only a declaration which is required to be made, the time limit being within one year of the publication of the Section 4 notification. The main purpose for the issuance of a declaration under Section 6 is provided by sub-section (3), namely, that the declaration is conclusive evidence that the land is needed inter alia for a public purpose and after the making of the declaration the appropriate Government may acquire the land in the manner provided by the Act. Sub-section (2) requires the declaration to be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situate and in addition thereto the Collector is also required to cause public notice of the substance of the declaration to be given in the convenient places in the said locality.” CW 7103/07 //13// In Urban Improvement Trust Vs. Bheru Lal (2002(7) SCC 712), Apex Court further observed : “14. As against this, Section 6 (1) provides that if the appropriate Government is satisfied that any particular land is needed for a public purpose or for a company, a declaration is to be made to that effect under the signature of the Secretary of such Government or of some officer duly authorised to certify its order. Further, such declaration is to be made within a period of one year from the date of publication of the notification under Section 4(1) of the Act. Hence, Section 6(1) does not require that such declaration could not be published in the official gazette after expiry of one year from the date of publication of the notification under Section 4(1). Time limit of one year is prescribed to a declaration to be made that land is needed for a public purpose under the signature of a Secretary or authorised officer to such Govt.” In the light of what has been observed (supra), once substance of notification U/s 4(1) was affixed at conspicuous/convenient places in the locality on 08/08/06, declaration made on 06/08/07 was much within one year period of limitation as provided U/s 6(1)(ii) of the Act. Next contention urged by Counsel for petitioner that as per provisions of Rajasthan Industrial Areas Allotment Rules, 1959 (“Rules, 1959”), no allotment can be made to the industries because the land sought to be acquired falls within abadi area of village over which CW 7103/07 //14// residential houses of petitioners are situated and thus cannot be acquired, is of no substance for the reasons that provisions of Rules, 1959 are applicable for allotment of land which is vested with the Government and U/r 11A, the land can be allotted to RIICO or Tourism Development Corporation and such land can be allotted by RIICO U/r 12 in accordance with Rajasthan State Industrial Development (Disposal of land) Rules, 1979. However, in instant case, since dispute is only with regard to acquisition proceedings initiated by respondents under Land Acquisition Act, 1894. Question with regard to allotment under Rules, 1959 is devoid of merit. Further submission made by Counsel for petitioners is that the land being acquired for Company, accordingly, proceedings were required to be initiated under Part-VII of the Act while in instant case, acquisition proceedings were initiated under Part-II which was in violation of provisions of the Act. Scope of Part II and Part VII of the Act when the land is to be acquired for public purpose or for a company has been considered by Apex Court vide judgment dt.12/10/07 in Devinder Singh Vs. State of Punjab (2008(1) SCC 728) and observed ad infra: CW 7103/07 //15// “38. Satisfaction on the part of the State required to be arrived at upon formation of opinion on the basis of materials brought on records for the purpose of Part II of the Act are different from that of Part VII. Once the appropriate Government arrives at a decision that the land sought to be acquired is needed for a public purpose the court would not go behind it, as the same may furnish a valid argument for upholding an acquisition under Part II. But when an acquisition is made under Part VII, the conditions precedents therefor as contained in the Companies Rules must be satisfied. On the face of record, if it can be shown that the Government had ignored the mandatory provisions of the Act, the acquisition would have to be struck down. 40. Distinction between acquisition under Part II and Part VII are self- evident. The State was not only obligated to issue a notification clearly stating as to whether the acquisition is for a public purpose or for the company. Section6 categorically states so, as would appear from the second proviso appended thereto. 41. A declaration is to be made either for a public purpose or for a company. It cannot be for both. 44. Expropriatory legislation, as is well-known, must be strictly construed. When the properties of a citizen is being compulsorily acquired by a State in exercise of its power of Eminent Domain, the essential ingredients thereof, namely, existence of a public purpose and payment of compensation are principal requisites therefor. In the case of acquisition of land for a private company, existence of a public purpose being not a requisite criteria, other statutory requirements call for strict compliance, being imperative in character.” In instant case, RIICO being a Government company CW 7103/07 //16// registered U/s 617 of the Companies Act and covered by S.3(cc), and “company other than Government Company” has been separately defined in S.3(e) of the Act, and for “Corporation”, the land can be acquired for public purposes in terms of S.3(f)(iv), for which proceedings have to be initiated under Part-II of the Act and for a “Company” other than Government company covered by S.3(e), procedure under Part-VII has to be followed, in the opinion of this Court, RIICO being Government company, acquisition proceedings for a public purpose have rightly been initiated in terms of Part-II of the Act. Next contention on which Counsel for petitioners laid much stress with full rigor is that after objections being raised by petitioner U/s 5A(1) of the Act, Collector (LAO) was under obligation to afford reasonable opportunity of hearing to objectors/persons interested as per mandatory requirement U/s 5A(2), which in instant case, was a mere formality as is evident from material on record which demonstrates that after notice being published in daily news paper “Alwar Bhaskar” on 24/06/07 that too, at the instance of Regional Manager of respondents-RIICO, who was not duly authorised to call upon persons interested/ objectors for public hearing CW 7103/07 //17// scheduled to take place next day on 25/06/07, where in fact no opportunity of hearing was afforded to them while 141 land owners/persons interested submitted written objections; as such action of respondents in affording opportunity of hearing in the facts of instant case was completely an eye wash and cannot be said to be in true compliance of statutory requirement of opportunity being afforded to objectors/persons interested. In reply & so also written submissions made available during arguments, respondents inter-alia averred that notice was published in news paper dt.24/06/07 for public hearing on 25/06/07 when opportunity of hearing was afforded by the LAO to objectors/persons interested as required U/s 5A(2) of the Act and accordingly compliance of mandatory requirement has been made. However, this Court noticed from the record as discussed (supra) that notice was published on 24/06/07 for public hearing on 25/06/07. In the order sheet of 25/06/07, the LAO merely recorded that objectors/Khatedars were heard but there is nothing on record as to who were objectors/Khatedars having remained present/ appeared for personal hearing before the LAO in CW 7103/07 //18// course of public hearing on 25/06/07; and as to whom opportunity of personal hearing was afforded and if at all, objectors have appeared, as to what were their objections raised on 25/06/07 and examined by LAO. It is neither borne out from order sheet drawn by LAO on 25/06/07 nor from the report dt.24/07/07 having been sent to the State Government nor from other material made available to this Court. It is relevant to mention as borne out from material on record that written objections submitted by objectors/Khatedars were sent to Regional Manager RIICO for its parawise comments on 13/07/07, in response whereof parawise comments were sent by Senior Regional Manager RIICO vide letter NO.2535/dt.24/07/07 on being dispatched from Bhiwadi to the LAO, RIICO. Udyog Bhawan, Jaipur while on the same day 24/07/07, vide letter No.662, the LAO sent the report to the State Government chronologically in the same seriatim of parawise comments having been received from RIICO Bhiwadi and the report did not contain any of objections which objectors/ persons interested, if raised during public hearing, being allegedly afforded to them. S.5A of the Act stipulates about requirement of personal hearing to objectors/ CW 7103/07 //19// persons interested, which has been held to be mandatory in character by consistent decisions of Apex Court where it has been declared that S.5A confers valuable right in favour of land owner with object to proposed acquisition of his property. In Munshi Singh Vs. Union of India (1973 (2) SCC 337) where Apex Court declared that S.5A embodied a just & wholesome principle that a person, whose property is being or is intended to be acquired, should have a proper and reasonable opportunity of persuading authority concerned to give up acquisition of the property belonging to that person.- “7. Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. We may refer to the observation of this Court in Nandeshwar Prasad & Anr. v. The State of U.P. & Others (AIR 1964 SC 1217)