1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR 1. RAM KUMAR VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO. 1023/98) 2. RADHEY SHYAM & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO. 1022/98) 3. STATE OF RAJASTHAN & ORS. VS. SMT. BADAM BAI (D.B.CIVIL SPECIAL APPEAL(W) NO. 1108/98) 4. STATE OF RAJASTHAN & ORS. VS. SMT. LAHAR BAI (D.B.CIVIL SPECIAL APPEAL(W) NO. 1109/98) 5. STATE OF RAJASTHAN & ORS. VS. PANCH KANSARAM (D.B.CIVIL SPECIAL APPEAL(W) NO. 1110/98) 6. STATE OF RAJASTHAN & ORS. VS. MOTI LAL (D.B.CIVIL SPECIAL APPEAL(W) NO. 1111/98) 7. STATE OF RAJASTHAN & ORS. VS. SHRI CHANDAN MAL (D.B.CIVIL SPECIAL APPEAL(W) NO. 1120/98) JUDGMENT Date of Judgment : 26th May, 2009 HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE SANGEET LODHA Mr. H.L.Kela, for the appellants in Appeal Nos. 1023/98 and 1022/98 and for the respondents in Appeal Nos. 1108/98, 1109/98, 1110/98 , 1111/98 and 1120/98. Mrs. Pratistha Dave, Dy.Government Counsel , for the respondents in Appeal Nos. 1023/98 and 1022/98 and for the appellants in Appeal Nos. 1108/98, 1109/98, 1110/98, 1111/98 and 1120/98. BY THE COURT (PER HON'BLE MR.SANGEET LODHA,J.) 1. These seven special appeals arise out of a common order dated 16th September,1998 passed by the learned Single Judge of this court , whereby the writ petitions nos. 1092/89, 1108/89, 1109/89, 1110/89 and 1111/89 preferred by the respective writ petitioners have been 2 allowed and accordingly, the notification u/s 4 of the Rajasthan Land Acquisition Act, 1953 ( in short “Rajasthan Act” hereinafter) so far as it relates to the subject matter of these writ petitions , has been quashed. However,by the self same order, the writ petition Nos.1077/89, 1058/89, and 1083/89 have been dismissed. 2. Against the order passed in Writ Petition Nos. 1092/89, 1108/89, 1109/89, 1110/89 and 1111/89, the State has filed the special appeals Nos. 1108/98, 1109/98, 1110/98, 1111/98 and 1120/98 respectively, whereas against the order passed in Writ Petition Nos. 1058/89 and 1077/89, the writ petitioners Shri Ram Kumar and Shri Radhey Shyam have filed the special appeal nos. 1022/98 and 1023/98 respectively. All the special appeals were heard together and the same are being disposed of by this common order. 3. In the five writ petitions which have been allowed by the learned Single Judge by the order impugned , the land acquisition proceedings have been quashed on the ground that the declaration u/s 6 of the Land Acquisition Act, 1894 was not made within the time limit. 4. The notification u/s 4 of the Rajasthan Act was issued with regard to the lands subject matter of aforesaid five writ petitions on 31.5.82. The report u/s 5-A of the Rajasthan Act was submitted by the Land Acquisition Officer to the State Government through the District Collector, Bhilwara on 24.6.86. The declaration u/s 6 of the Rajasthan Act with regard to some of the lands was published vide notification 3 dated 12.2.87 in the official gazette on 5.3.87. Notice u/s 9 of the Rajasthan Act was issued and the writ petitioners were called upon to submit their claim. The possession of the lands was taken by the Land Acquisition Officer and handed over to the Municipal Board, Gangapur for whose benefits the lands were acquired. The award was passed by the Land Acquisition Officer on 4.8.88, which was later revised vide order dated 29.12.88. However, an amended notification u/s. 6 dated 5.6.95 giving the details of inter alia the lands which are subject matter of five writ petitions allowed by the learned Single Judge,was published in official gazette on 8.6.95, declaring it to be part of the original notification dated 12.2.87, it was made effective with effect from 5.3.87. 5. It was contended on behalf of the writ petitioners before the learned Single Judge that the Rajasthan Act stands repealed w.e.f. 3.1.87 and the Act of 1894 was made applicable to the State of Rajasthan w.e.f. 24.9.84, therefore, the notification u/s 6 issued under the repealed Act is void , nullity and nonest. Regarding the lands subject matter of five writ petitions allowed by the learned Single Judge, it was submitted on behalf of the writ petitioners that since no notification u/s 6 of the Act of 1894 has been published during the period of limitation therefore,the land acquisition proceedings stand vitiated and the subsequent notification dated 5.6.95 published in official gazette on 8.6.95 which was made effective w.e.f. 5.3.87, cannot validate the land 4 acquisition proceedings which already stand lapsed on account of non issuance of the notification u/s 6 of the Act of 1894 within the time limit. That apart, it was contended on behalf of the writ petitioners before the learned Single Judge that no scheme or plan was prepared by the local authority before the issuance of notification u/s 4 of the Act therefore, the acquisition proceedings stand vitiated. It was submitted that the lands which are to be acquired are in patches and are not capable of being used for systematic development. It was further submitted on behalf of the writ petitioners that some of the lands have been left out therefore, it is a case of discrimination being practised amongst the persons similarly situated. In Writ Petition No.1077/89 (SAW No.1022/98), an additional ground was raised that the notification u/s 4 was issued against the dead person and hence, the whole proceedings were a nullity. 6. The stand of the State before the learned Single Judge was that the notification u/s 6 dated 5.6.95 issued by the State Government was published in the official gazette on 8.6.95 which has been made effective from 5.3.87, therefore, it is wrong to contend that no notification u/s 6 of the Act of 1894 has been issued. It was submitted that the State Government could not issue the notification u/s 6 prior to June, 1995 inasmuch as, the stay granted by this court was operative. That apart, the contention was that the State Government has got powers to issue the notification or an order with retrospective effect 5 and once the notification has been made effective from 5.3.87, the same has to be treated as issued within time limit. Regarding the notification being issued under the repealed Act, it was submitted on behalf of the respondents that merely quoting of the wrong provision will not make the notification bad in law if the power is traceable under the relevant Statute. It was submitted that the writ petitions have been filed by the writ petitioners after a great delay, even after passing of the award by the Land Acquisition Officer, therefore, the same deserve to be dismissed on the ground of laches alone. It was submitted that before initiating the proceedings for acquisition of the land the preparation of the scheme or the plan was not condition precedent. It was submitted that only those lands which could not be used for the public purpose were left out, therefore, on that ground the writ petitioners cannot assail validity of the land acquisition proceedings. Regarding the additional ground taken in writ petition No. 1077/89, it was submitted that factum of death of Shri Bhanwar Lal was not recorded in the revenue record and therefore, the authorities were not aware of his death. It was submitted that after the notification u/s 4 of the Rajasthan Act , the writ petitioner Radhey Shyam appeared through Advocate and participated in the land acquisition proceedings before the Land Acquisition Officer for determination of the amount of compensation .It was further submitted that the notice u/s 5 A issued in the name of Bhanwar Lal was served upon Radhey Shyam who had 6 appeared before the Land Acquisition Officer, therefore, no prejudice was caused to the writ petitioners on account of the publication of notification u/s 4 giving the name of deceased Shri Bhanwar Lal as land holder. 7. After due consideration , the learned Single Judge arrived at the finding that the notification u/s 4 dated 31.5.82 was published in the official gazette on 10.6.82, therefore, under the Rajasthan Act, the outer limit of making of the notification u/s 6 was 10.6.85, however, during the pendency of the land acquisition proceedings under the Rajasthan Act, the Central Act of 1894 was extended to the State of Rajasthan repealing the Rajasthan Act w.e.f. 24.9.84, therefore, by virtue of provisions of Section 56 of the Act of 1894 , the notification u/s 6 of the Act of 1894 could be issued by 3.1.88. The learned Single Judge opined that the period from 1987 to 1995 cannot be excluded under Explanation I of Section 6(1) of the Act of 1894 inasmuch as, vide stay order dated 1.4.89 passed by the court, the respondents were only restrained from dispossessing the writ petitioners from the lands in question and there was no stay on the land acquisition proceedings as such. The learned Single Judge observed that before issuing notification on 5.6.95, the state authorities did not seek court's permission obviously because they knew that there was no stay against issuing notification u/s 6 .The learned Single Judge opined that if the authorities were under a bona fide belief that there was interim order 7 staying the acquisition proceedings then, they could not have ignored the stay order while issuing notification on 5.6.95. Accordingly, the learned Single Judge held that since the declaration u/s 6 has not been made within the time limit i.e. three years, therefore, the land acquisition proceedings stand vitiated. The plea of the State Government that the land has vested in the State Government because of taking possession of the lands by the Land Acquisition Officer has been rejected by the learned Single Judge holding that the possession of land can be taken by the Collector/Land Acquisition Officer only after declaration u/s 6 has been issued therefore, without issuing the declaration u/s 6 , the subsequent proceedings of taking possession cannot be held to be valid and the land cannot be held to have vested in the State Government. Accordingly, the land acquisition proceedings in respect of the lands subject matter of the aforesaid five writ petitions have been quashed. 8. The writ petition Nos. 1058/89 and 1077/89 have been dismissed by the learned Single Judge holding that writ petitions filed after seven years of the issuance of the notification u/s 4 and after passing of the award suffers from vice of inordinate delay. The contention of the learned counsel for the writ petitioners that the physical possession of the land was not taken and only the paper possession was taken , has also been rejected by the learned Single Judge. The contention of the learned counsel for the writ petitioners that after passing of the award 8 dated 4.8.88,the Land Acquisition Officer has become functus officio and therefore, could not have revised the same vide order dated 29.12.88 also did not find favour with the learned Single Judge on the ground that the writ petitioners have already made the applications to the Collector to refer the matter of award to the civil courts. The learned Single Judge held that on account of absence of scheme/plan, the land acquisition proceedings are not vitiated. The learned Single Judge held that it is not the functions of the court to see as to whether the lands in fragments can be used for the declared public purpose or not. The learned Single Judge further held that on the ground that some of the lands have been left out the acquisition proceedings cannot be quashed. Regarding the additional ground taken in writ petition No. 1077/89, the learned Single Judge held that since legal representatives of Bhanwar Lal have participated in the land acquisition proceedings therefore,on account of mere mention of name of a dead person in the notification u/s 4 , the acquisition proceedings shall not stand vitiated. The learned Single Judge observed that Section 4 nowhere required that the name of the owner of the land should be stated in the notification, what was required to be stated was the description of the land and the locality where the land was situated. 9. It is contended by the Deputy Government Counsel on behalf of the State that the writ petitioners have participated in the land acquisition proceeding before the Land Acquisition Officer , the 9 possession of the land was taken and the award has already been passed therefore, at this belated stage, they could not be permitted to assail the validity of the land acquisition proceedings invoking extra ordinary jurisdiction of this court under Article 226 of the Constitution of India. It is submitted that once the possession of the land is taken, the same stands vested in the State Government and thereafter, the validity of the land acquisition proceedings cannot be assailed on any ground. The learned Dy.Government Counsel submitted that the learned Single Judge has committed serious error of law in holding that the declaration u/s 6 of the Act of 1894 could not have been made effective retrospectively. The learned counsel further submitted that if the petitioners are aggrieved by the notification issued u/s 6 of the Rajasthan Act dated 5.2.87, they could have assailed the validity thereof immediately after its publication. Accordingly, it is submitted that the challenge of the petitioners to the notification dated 5.2.87 after conclusion of the land acquisition proceedings should not have been entertained by this court. It is submitted that the validity of the subsequent notification dated 5.6.95 has not been assailed by the petitioners by way of fresh writ petition or by way of amendment of the writ petition therefore, the land acquisition proceedings could not have been quashed on the ground that the notification u/s 6 dated 5.6.95 has been issued after the expiry of the time limit. 10. Per contra, the learned counsel Mr. H.L.Kela appearing for the 10 writ petitioners, the respondents herein, in the five appeals preferred by the State, has reiterated his contentions raised before the learned Single Judge. The learned counsel submitted that since the valid notification u/s 6 of the Act of 1894 has not been issued within the time limit therefore, the entire land acquisition proceedings stand vitiated. The learned counsel submitted that when the Statute prescribes a particular manner for doing a particular thing, then the same must be done in that manner alone or not at all and all other methods or mode of performance are impliedly and necessarily forbidden, therefore, the subsequent notification issued cannot revive the land acquisition proceedings which stand lapsed on account of failure to issue the proper notification u/s 6 of the Act of 1894 within time limit. In support of his contentions, the learned counsel has relied upon decisions of the Hon'ble Supreme Court in the matters of “Padma Sundara Rao (Dead) & Ors. vs. State of T.N. & Ors.”, (2002) 3 SCC, 533 and “Kunwar Pal Singh (Dead) by Lrs vs. State of U.P. & Ors.”, (2007) 5 SCC, 85. The learned counsel submitted that after repeal of the Rajasthan Act, the notification issued under the said Act was ex facie without jurisdiction. 11. Assailing the validity of the order passed by the learned Single Judge dismissing the writ petition Nos. 1058/89 and 1077/89, the learned counsel for the writ petitioners Mr. Kela submitted that the declaration u/s 6 in the instant case has been issued under the 11 Rajasthan Act which stands repealed therefore, the entire acquisition proceedings taken thereafter is a nullity in eye of law. The learned counsel submitted that the notification dated 31.5.82 u/s 4 was issued for acquisition of the land for housing purposes as per the scheme of Municipal Board and the Municipal Board has already abandoned the scheme and the Land Acquisition Authority/State Government has been requested for de-acquisition of the land. It is submitted by the learned counsel that the lands in question presently available with the Municipal Board are scattered and cannot be used for the housing purposes therefore, the land acquisition proceedings deserved to be quashed for this reason alone. The learned counsel submitted that some of the land already stand de-acquired by the State Government therefore, there is no reason as to why the similar treatment should not be extended to the writ petitioners. 12. Replying the arguments of the learned counsel for the appellants- writ petitioners in appeal Nos. 1022/98 and 1023/98, the learned Dy.Government Counsel submitted that the contentions sought to be raised that the land cannot be used for the housing purposes for the first time before this court cannot be entertained. It is submitted by the learned counsel that the land should be de-acquired or not in this regard, the appropriate decision can be taken by the State Government in accordance with the provisions of the Act of 1894 and the appellants- writ petitioners cannot claim de-acquisition of the land as a matter of 12 right. It is submitted that if the some of the lands were not useful for the purpose the same were sought to be acquired and for this reason, the same have been left out then, on that basis the writ petitioners cannot contend that they have been subjected to hostile discrimination. Regarding the additional plea taken in SAW No. 1022/98 as referred supra, the learned Deputy Government Counsel has supported the findings arrived at by the learned Single Judge. It is submitted by the learned Deputy Government Counsel that on the facts and in the circumstances of the case, these writ petitions suffering from inordinate delay and laches have rightly been dismissed by the learned Single Judge. 13. We have considered the rival submissions and perused the record. 14. Before we proceed to consider the controversy involved in the present matters , it will be appropriate to have a look at the scheme underlying the provisions incorporated in part II of the Act of 1894 which governs the acquisition of the land for any public purpose or for a company. 15. Sub section (1) of Section 4 of the Act of 1894 provides that whenever it appears to the State Government that the 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 the Collector shall cause public notice of substance of such notification to be given in the convenient places of the said locality. 13 Precisely, the purpose of issuing of notification u/s 4(1), therefore, is to inform the public in general and the persons who are likely to be affected by the proposed acquisition so that they may file objection u/s 5 A to the acquisition of the land or of any land in the locality, as the case may be. That apart, a notification u/s.4 lays down the foundation for preliminary investigation by any officer either generally or specially authorised by the appropriate government in this behalf to survey the land and do the necessary acts in course of investigation in terms of the provisions of Sub section (2) of Section 4 so as to ascertain whether the land is adapted for the purpose for which it is sought to be acquired. 16. Sub section(2) of Section 5 A provides that the Collector before whom the objections have been lodged shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall , after hearing all such objections and after making such inquiry, if any, as he thinks necessary shall make report and forward the same together the record of the proceedings held by him for the decision of the appropriate government. Thereafter, the decision of the appropriate government on the objections becomes final. 17. As per Section 6(1) if the appropriate government after considering the report of the Collector made u/s 5 A is satisfied that any particular land is needed for any public purpose or for a company, a declaration shall be made to that effect under the signature of the 14 Secretary to such Government or of some officer duly authorised . Sub section (2) of Section 6 inter alia provides that the aforesaid notification relating to such declaration of the government shall be published in the official gazette . Sub section (3) provides that the said declaration shall be conclusive evidence that the land is needed for the public purpose or the company, as the case may be and after making such declaration , the appropriate government may acquire the land in the manner prescribed under the Act of 1894. Thus, the declaration u/s 6 is the conclusive evidence of the decision of the appropriate government as to the need of the land so also the purpose for which the land is sought to be acquired. 18. However, in view of the proviso to sub section(1) of Section 6 , no declaration in respect of a particular land covered under sub section (1) of Section 4 shall be made after the commencement of the Land Acquisition ( Amendment & Validation) Ordinance, 1967 but before the commencement of the Land Acquisition(Amendment) Act, 1984 after the expiry of three years from the date of publication of the notification under Section 4(1) of the Act of 1894 and in case of publication of the notification u/s 4 (1) after the commencement of the Land Acquisition (Amendment)Act, 1984, after the expiry of one year from the date of publication of the notification. Thus, if the appropriate government fails to make declaration in terms of Section 6(1) of the Act of 1894 within the time limit prescribed after publication of the notification u/s 4(1) of 15 the Act of 1894, it has no power to make a declaration thereafter and obviously in that situation the land acquisition proceedings shall not proceed further and shall stand lapsed. It is to be noticed that even in case of urgency when the power is exercised by the appropriate government u/s 17, the requirement of declaration u/s 6 cannot be dispensed with. 19. In this backdrop, now we proceed to examine as to whether the condition precedent of declaration u/s 6(1) of the Act of 1894 for proceeding with the land acquisition proceedings further stands satisfied in respect of the lands subject matter of five writ petitions which have been allowed by the learned Single Judge and the land proceedings have been quashed. 20. Admittedly, the notification u/s 4(1) in respect of the lands in question was published in the official gazette on 10.6.82 therefore, the period of three years prescribed for issuing the notification u/s 6(1) expired on 10.6.85. But then, during the pendency of land acquisition proceedings which was initiated under the Rajasthan Act, the Act of 1894 was extended to the State of Rajasthan by repealing the Rajasthan Act w.e.f. 24.9.84 and by virtue of Section 56 of the Act of 1894 added vide Land Acquisition(Rajasthan Amendment) Act, 1987, the declaration u/s 6 could be made within a period of one year from the commencement of the said Amendment Act,1987 i.e. by 3.1.88. The notification with regard to some of the lands covered by notification u/s 16 4 was issued on 12.2.87 which was published in the official gazette on 5.3.87 however,admittedly, in respect of the lands which are subject matter of five writ petitions allowed by the learned Single Judge, no notification was issued u/s 6 (1) of the Act of 1894 in the prescribed time limit. 21. In this regard,the precise contention of the State is that since notification dated 5.6.95 in respect of the land subject matter of the five writ petitions was published on 8.6.95 making it effective w.e.f. 5.3.87 therefore, the requirement of declaration u/s 6(1) of the Act of 1894 stands satisfied. As noticed above, the purpose of notification u/s 4 (1) is to inform the general public and the persons likely to be affected by the proposed acquisition of the land