1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: D.B. CIVIL SPECIAL APPEAL NO.203/1996 LRs of Nand lal Vs. The State of Rajasthan & Ors. Date of Judgment :: 08-01-2007 P R E S E N T HON'BLE THE CHIEF JUSTICE SHRI S.N.JHA HON'BLE SHRI JUSTICE GOVIND MATHUR Shri M.R. Singhvi ] Shri Manish Shishodia ] Shri H.L. Kela ] for the appellant. Shri R.G. Purohit for the respondents. **** BY THE COURT (PER HON'BLE THE CHIEF JUSTICE)(ORAL): This special appeal is directed against the order of the learned Single Judge dated 1.3.1996 in S.B. Civil Writ Petition no.2312/1985 dismissing the writ petition of the appellant. The appellant had filed the writ petition challenging the validity of notification dated 22.4.1982 under Section 4 of the Rajasthan Land 2 Acquisition Act, 1953 and declaration under Section 6 of the said Act dated 7.6.1982 so far as they relate to lands of khasra nos.2478 and 2479 of the revenue village Bhilwara. The appellant claims to have purchased the lands under registered sale deeds from khatedars, namely, Misri lal and Smt. Nagini Bai on 28.7.1981 and 6.8.1981 respectively. According to him, on 6.9.1981 he got his name included in the revenue records in place of the previous khatedar but the proceeding was initiated and continued only against the khatedar. The appellant thus, firstly, seeks to challenge the validity of the notifications on account of non-joinder and absence of notice. It appears that a large chunk of land was acquired for developing a housing colony called 'Shastri Nagar Extension Project' at Bhilwara under the Rajasthan Land Acquisition Act 1953 (referred to as 'the State Act'). Considering the urgency of the project, the Government simultaneously issued notification under Section 17(4) of the Act dispensing with the enquiry provisions under Section 5A of the Act, along with the declaration under Section 6 on 7.6.1982. It is relevant to mention here that the (Central) Land Acquisition Act, 1894 (referred to as 'the Central Act') was extended to the State of Rajasthan with effect from 24.9.1984. Large scale 3 amendments were made in the Central Act vide Act 68 of 1984 which came into effect on 24.9.1984 and the Act was made applicable to the State of Rajasthan. Earlier the acquisition was being done under the Rajasthan Land Acquisition Act 1953 and that is how the impugned notification and declaration had been issued under that Act. As regards the plea as to non-joinder of the appellant there is no requirement under either Section 4 or Section 6 of the Act to disclose the names of the landowners in the notification or declaration, as the case may be. Section 4 of the Rajasthan Act, as it then stood when the notification was issued, contemplated issuance of notification, whenever the State Government considered it necessary or expedient to acquire land in any locality, needed or likely to be needed for a public purpose, by an order published in accordance with the provisions of sub-section (4) of section 45, requiring any officer subordinate to it and generally or specially authorized in this behalf, to do certain things as mentioned therein. Section 6 provided that when the State Government is satisfied, after considering the report, if any, made under Section 5A(2) that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect. Likewise Section 4 of the Central Act refers to manner of publication of the intention of the appropriate Government of the 4 intention to acquire “land in any locality” for any public purpose and Section 6 refers to making of declaration, on being satisfied after considering the report under Section 5A(2) to acquire “any particular land”. From a bare reading of the above provisions, it is manifest that they merely enjoin upon the authority to notify particulars of the land which is sought to be acquired; particulars of the persons who may be owners of the land are not required to be mentioned in the notification or declaration. It is relevant to mention here that in terms of Section 5A which provides for filing and hearing of objections to the proposed acquisition of land, “Any person interested in any land” may file objection within thirty days from the date of publication of the notification under Section 4. This being the legal position, the appellant can not contend that the proceeding was defective because of non-joinder. It will not be out of place to mention that in the notification the names of Misri Lal or Nagini Bai were not disclosed either because they were not required to be disclosed as seen above. Counsel for the appellant however referred to sub-section (5) of section 4 of the State Act and submitted that clause (g) of sub-section (1) of section 4 obliged the Collector to inquire into and 5 ascertain the particulars of the person(s) interested in such land and sub-section (5) required him to give notice in the prescribed form of the proposed acquisition “to all the persons reported under clause (g) of sub-section (1) to be interested in the land”. It was therefore necessary to implead the appellant and serve him notice of the proceeding. In this regard, counsel placed reliance on a decision of this Court in M/s Rajasthan Udhyog Vs. State, 1976 WLN 835. The submission overlooks the fact that the provisions relating to inquiry under Section 5A were dispensed with applying the urgency provisions under Section 17(4) of the Act. The object of the notice referred in Section 4(5) apparently being to provide opportunity to the persons interested in the land to file objection under Section 5A, where the inquiry under Section 5A is dispensed with, it would follow, the question as to whether the procedure contemplated in Section 4(5) read with Section 4(1)(g) was followed or not becomes academic. We thus find no substance in the submission of the counsel that the proceeding was defective for non-joinder of the appellant. It is relevant to mention here that notice nevertheless had been issued by the authority on 13.6.1985 to appear before the Land Acquisition Officer in the matter of determination of compensation on 6.7.1985. The award in the instant case was 6 prepared on 28.12.1988, that is, much after the service of the said notice which means that prior to assessment of compensation, the appellant had due notice of the proceeding. In this view of the matter, the submissions based on the non-joinder and/or alleged non-service of the notice of the proceeding must be rejected. Counsel for the appellant then submitted that the award having not been made within two years in terms of Section 11A of the Act, the proceeding must be held to have lapsed and the acquisition proceedings therefore can not be continued. It was stated that two years' period expired on 23.9.1986, reckoned from the date when the Central Act was extended and made applicable to the State of Rajasthan whereas the award was made on 28.12.1988. Our attention was drawn by the counsel for the respondents to sub-section (4) of Section 56 of the Act, which was inserted in the Central Act by a state amendment vide the Land Acqusition (Rajasthan Amendment) Act 1987 (Act 8 of 1987). It was submitted that in terms of sub-section (4) of Section 56 where, in any proceeding pending under the State Act on the date of extension or instituted after the said date, a declaration under Section 6 or an award under Section 11 has been made after any of the respective periods as specified in Section 6 or Section 11A, as the case 7 may be, has expired, the said period or the periods, as the case may be, “shall be deemed to have been extended up to the date of such declaration or award”. In reply, it was submitted on behalf of the appellant that Section 56 came into force on 3.4.1987 vide Section 1(3) of the Land Acquisition (Rajasthan Amendment) Act whereas the period of two years contemplated under Section 11-A had already expired on 23.9.1986. In our opinion, it is not necessary to go into the above controversy or to invoke provisions of Section 56(4) of the Act in order to save the proceeding. It is the admitted position that on 29.10.1985, on application of the appellant in the connected writ petition, an interim order was passed to the effect that “status quo as regards possession shall be maintained”. The writ petition was decided on 1.3.1986. Soon after, on 13.5.1996, similar interim order was passed by the Division Bench in the present appeal. By virtue of the said interim orders, the proceeding apparently remained in abeyance. The question is whether the appellant is entitled to the benefits of Section 11A of the Act in view of the said orders. On behalf of the appellant it was submitted that the said interim orders are immaterial as they did not deter the Collector from making award on 8 28.12.1988. It was also submitted that according to the respondents they had already taken possession of the land on 28.1.1984 vide Annexure-R/1 to the reply. Section 11A which was inserted by Act 68 of 1984 with effect from 24.9.1984 provides that the Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. The provision is however hedged in by an explanation in terms of which while computing the period of two years, the period covered by interim order has to be excluded. Having regard to its significance, it would be appropriate to quote the Explanation verbatim as under :- “Explanation.- In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.” On a bare reading it is manifest that not only in cases of stay of proceeding but also stay of “any action” in pursuance of the declaration by a Court, the period covered by the order of stay has to be excluded. In the instant case, no doubt, the Collector was not restrained from making award which he did on 28.12.1988 but it is clear that further action was not taken because of the interim order 9 directing maintenance of status quo. The submission of the counsel for the appellant that on their own saying the respondents had taken possession of the land on 28.1.1984 itself is of little significance, for, even if it is accepted that authorities had taken possession of the land prior to the status quo order, there is no doubt that the proceeding remained in abeyance and the process relating to acquisition could not be taken to its logical end because of the status quo order. The words “any action” in the Explanation to Section 11A, in our opinion, are words of great significance. The object behind fixing a time limit of two years for making the award clearly was to save owners of the land from indefinite prolongation of the proceeding, but the legislature struck a balance by providing that the owner of the land cannot claim such benefit where he has obtained an interim order, and thereby prevented the authorities from effectuating the acquisition of land. Our attention was drawn by counsel for the respondents to a decision of the Supreme Court in Yusufbhai Noormohmed Nendoliya Vs. State of Gujarat, AIR 1991 SC 2153. In that case, in a writ petition filed by the owner of the land, the High Court had granted limited interim relief restraining the State from taking possession of the said lands of the appellant. Dealing with the similar submission, their Lordships observed as under :- 10 “. . . . . . In order to get the benefit of the said provision what is required, is that the land-holder who seeks the benefit must not have obtained any order from a Court restraining any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those land-holders who do not obtain any order from a Court which would delay or prevent the making of the award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in taking a similar view in the impugned judgment.” (emphasis supplied) The above observation squarely covers the submission of counsel for the appellant and it has to be held that by reason of the status quo orders obtained by the appellant, both in the writ petition as well as in the present appeal which had remained operative right from 29.10.1985 till date except for a brief spell of little late over two months, the proceeding remained in abeyance and the process of land acquisition could not be taken to its logical end. Having thus obtained the interim order, we are satisfied that the case is covered by the explanation to Section 11A and the appellant cannot contend that the proceeding lapsed because the Collector did not make award within two years from the date of declaration under Section 6 of the Act. On the point of lapse of proceeding counsel for the respondents also referred to Satendra Prasad Jain Vs. State of U.P., AIR 1993 SC 2517 and placed particular reliance on the following observations :- 11 “. . . . . When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner.” The above observations also, it would appear, lend support to the respondents' case and provides additional ground to reject the contention of the appellant regarding lapse of proceeding. Counsel for the appellant lastly submitted that the respondents released part of the lands in terms of Section 48(1) of the Act and therefore non- release of the land(s) of the appellant is discriminatory, and a direction may be issued to grant similar exemption in respect of the appellant's land. Counsel placed reliance on a decision of a learned Single Judge of this Court in Ashok Kumar & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition no.1751/1985, decided on 12.9.1995). Observing that refusal on the part of the State to de-acquire piece of land is a hostile discrimination “as other identically situated have been given their lands” and there is no acquisition of their land the learned Judge allowed the writ petition of Ashok Kumar and 12 others. Facts of that case are not known and it is also not known as to what consideration weighed with the authorities in releasing the land of others. Merely because the land in question was sought to be acquired in the same transaction along with the land which is subject matter of the present proceeding or other lands, it does not mean that the case of the all land holders affected by the process of acquisition would stand on the same footing. There may be variety of reasons to justify the release of part of the land but the fact that a particular piece of land has been released does not mean that the other lands covered by the notification and proceeding should also be released. If that were so, it would follow that decision to release a particular piece of land from the acquisition would have a chain effect and in course of time nothing may be left with the State, for, all the land holders may come forward and seek similar release. In the absence of any evidence on the basis of which the release was allowed to others we are not impressed by the submission that the land in question of the appellant should also be released. On behalf of the respondents, reliance was placed on Yadunandan Garg v. State of Rajasthan, AIR 1996 SC 520 . Repelling similar arguments of the landowner, the Supreme Court observed as under :- “It is true, for reasons best known to the authorities, that Anand Nursery had the benefit of the exemption. The wrong 13 exemption under wrong action taken by the authorities will not clothe others to get the same benefit nor can Article 14 be pressed into service on the ground of invidious discrimination. The wrong mention of Survey number in notice under Section 9 cannot caste cloud on valid notification issued under Section 4 (1) of the Act. It is enough that main survey number is mentioned in the notification under Section 4 and the details thereof would be supplemented at the appropriate stage. Mention of the sub- division of the main survey number does not render the notification under Section 4(1) does not get vitiated.” We thus do not find any substance in the submission of the counsel that the acquisition should be struck down on the ground that part of the land covered by the notification was released and the non-release of the appellant's land is discriminatory. Acquisition of land under any acquisition statute can be struck down on limited grounds that the acquisition is not for a public purpose or that the acquisition is in colourable exercise of power, that is to say, the real purpose is different from the professed public purpose, or on the ground of mala fide. No such ground is made out in the instant case. The contentions of the appellant having thus been rejected, we do not find any merit in this appeal which is accordingly dismissed but without any order as to costs. [GOVIND MATHUR],J. [S.N.JHA],CJ. Skant/-