IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SPECIAL APPEAL WRIT No. 52 of 2002 Ganpat Rai & Anr. V/S The State of Rajasthan & Anr. Date of Judgment : 13.8.2008 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. A.K.Rajvanshy, for the appellant. Mr. Deepak Choudhary, Dy.G.C., for the respondent. BY THE COURT: (PER HON'BLE GUPTA,J.) This appeal has been filed by the appellants, challenging the judgment of the learned Single Judge dated 12.12.2001, dismissing the writ petition, which was filed seeking to challenge the land acquisition proceedings, and for quashing the notification under Section 4, and all consequential proceedings of acquisition of the land belonging to the petitioners. The necessary facts are, that on 17.12.1996, the writ petition was filed alleging inter-alia, that the land bearing Khasra No.439, 440, and 441 was owned and possessed by late Shri Hanuman Prasad, Dayal Chand and Ishwar Dutta as khatedars, who were all real brothers, and on partition, certain land fell to joint share of Hanuman Prasad and Dayal Chand, and Khasra No.441 remained with Hanuman Prasad and Ishwar Dutta. The petitioners are the sons of Hanuman Prasad. It is then alleged, that renumbering of certain lands were made, and then there was further partition. Regarding share of Ishwar Dutta, it was pleaded that he sold his land by registered sale deed to Ram Lal and Ram Avtar, who in turn subdivided the land in various plots, and sold them to others by registered sale deeds. With giving this background of title, it was pleaded, that on 4.9.85, the Krishi Upaj Mandi wrote the Tehsildar, to locate land for establishment of Krishi Upaj Mandi. In response to the above, the Tehsildar identified Khasra No.428, 429, 437 and 1486/466 as suitable, and communicated vide letter dated 19.12.1985, which has been produced as Annex.5. Then vide letter dated 22.11.1985, the Krishi Upaj Mandi approved the suggestion, and the matter was referred for further approval from the Town Planner, and Agricultural Marketing Board by the SDO. Then Secretary, Krishi Upaj Mandi himself also inspected the site of that land measuring 45 bigha 10 biswa, and found to be suitable for Krishi Upaj Mandi, and accordingly, vide letter dated 2 10.6.87 communicated Tehsildar to make available copies of the revenue records (Annex.8 and 9). The petitioners have then pleaded, that vide letter dated 23.7.87, the SDO intimated the Collector to allot the said land of Khasra No.437, 428, 1589/429, and 1486/436 to Krishi Upaj Mandi. This is produced as Annex.10. According to the petitioners, it is thereafter, that the things took a U turn, and on 8.6.92 a letter was sent by the Secretary, Krishi Upaj Mandi to the SDO, at the behest of certain interested persons, by making over-writings, and erasers, in the said letter. This letter, being Annex.11, purports to request to SDO to acquire land. Thereafter, a notification under Section 4 of the Land Acquisition Act, 1894 was published, envisaging acquisition of Khasra No.437, 438 and 439 instead of Khasra No.428, 429 and 436. This has been produced as Annex.12. Then a notice under Section 6 read with Sestion 17 of the Act was also published in the Rajasthan Gazette on 5.7.95, produced as Annex.13. In response to the aforesayd notice, objections were filed on 23.3.96. It is then also a|leged, that0the Land Acquisition Officer visited the spot, and threatened to dispossess the petitioners. Alleging these facts, the writ has been filed, contending non-publication of notice under Section 4 in accordance with law, being in the vicinity of the property, in the local daily newspapers, and so on. Then non- application of mind was pointed out, by pleading, that the Khasra numbers had been changed, but such change does not 3 find mention. Then it is contended, that some of the lands have been converted into Abadi, and even pattas thereof have been issued, and houses have been constructed thereon, after obtaining permission from the Municipal Board, apart from the fact, that substantial portion of the land is in possession of the purchasers, and land measuring 15 x 100 ft is in possession of the PHED, whereon a well has been excavated, and public water taps have been installed, which all has not been noticed. It is also alleged, that the government did not record requisite satisfaction, about suitability of the land. The action of the State is pleaded to be arbitrary and malafide. Then correctness of measurements has also been challenged, it is also contended, that the proceedings have become stale, as they were initiated in 1993, did not end till filing of the writ petition. Then it is also alleged, that the move of acquisition is motivated at the behest of certain other interested persons. Various other grounds have also been raised. Separate replies to the writ petition have been filed, being on behalf of the State, as well as the Land Acquisition Officer. In the reply of the State, many of the paras have been replied as requiring no comments from the State. Then it is pleaded, that land in question was most suitable for 4 the purpose of construction of Mandi Yard, and that the Secretary of the Krishi Upaj Mandi has suggested the land in question only, and the alleged interpolations are not interpolations, but are only corrections. Likewise it is pleaded, that all formalities as laid down in the Land Acquisition Act, have meticulously been followed, including regarding publication. It is also pleaded, that possession of the land had been handed over to the State on 5.7.97 vide Annex.R-4, and the letter and the cheques for compensation had been sent on 8.7.97, vide Annex.R-5. Award is also said to have been passed, being Annex.R-2. Thus, acquisition proceedings were sought to be supported. The Land Acquisition Officer in its reply submitted, that the patta has been granted after notification under Section 4, and thus, is in violation of the law. The allegation about sale of 60 plots by Ram Lal and Ram Avtar was denied, contending, that the land included the land in acquisition, and survey was conducted, and that only 266.66 sq. yards was got converted for residential purposes, which cannot be taken into consideration, as it was done after notification of the acquisition. Then regarding interpolations, it was pleaded, that it is the Secretary, Krishi Upaj Mandi, who himself has made corrections in the letter. It was pleaded, that the Secretary was the right person, who alongwith the department selected the most suitable land for 5 establishment of Krishi Upaj Mandi, and it was pleaded, that notification under Section 4 was published, which did not mention land of Khasra No.437 as well as 438, as it was not proposed, and therefore, they were not necessary to be included. Then certain details have been given, as to how the notification under Section 4 was published, and certain pleadings taken by the State were reiterated. A rejoinder had been filed by the petitioners, controverting the pleadings taken by the respondents, as were contrary to the averments of the writ petition. The petitioners produced Annex.15, the copy of the sale deed dated 25.6.93, which obviously was before the publication of notification under Section 4. Then it was maintained that survey was conducted, and the land of Khasra No.428, 429 and 437 was found fit and suitable for the purpose, and Khasra No.439, 440 and 441 were not at all there in picture. They were neither considered, nor surveyed by the competent authority. It was also pleaded, that neither of the respondents could have personal knowledge about Annex.11, containing corrections to have been made by the Secretary himself, and the Secretary, who has filed the reply, has not pleaded to have himself made the corrections. Then local publication of the notice under Section 4 was denied. The newspaper, in which it is said to have been published, was alleged to be having no circulation, or very poor circulation. The other facts were 6 highlighted, as to how in a hot-haste and manipulated manner, the things were manipulated. Then factum of taking possession was denied, and Annex.19 to 22 were produced to show the actual physical possession over the land, by producing copies of the electricity and water bills. The learned Single Judge held, that the petitioners have not stated anywhere, about their having not become aware of the notice under Section 4, or about their having filed objections, and it is observed that no explanation has been given, as to why the writ petition has been filed at a much belated stage, assuming that declaration under Section 6 is not under challenge directly, even though it may fall within the expression “proceedings subsequent to Section 5 notification”. It is also considered that if the award has been made on 18.6.97, whey petitioners did not bring this fact to the knowledge of this Court when the petition was first time entertained on 10.7.97. Then adjournments sought on the side of the petitioners have also been taken into consideration, by considering, that the petitioners did not try to argue the case before passing of the award, and the alleged dispossession. Then it is assumed, that at the behest of few persons, development of entire scheme should not have been prevented. Thus it was found, that since the petitioners have not approached the Court within reasonable time, and allowed the completion of the acquisition 7 proceedings, the petition is liable to be rejected, only on the ground of delay. Thus, the writ petition has been dismissed. The contention about the petitioners' actual physical possession was negatived, on the ground, that even taking paper possession is sufficient. In this appeal, during course of pendency of appeal, the appellants have filed application being dated 24.1.2002, seeking to produce certain documents, being photograph of the temple and gate, and also producing order dated 30.8.2001, i.e. an order passed during pendency of the writ petition, purportedly under Section 90-B of the Rajasthan Land Revenue Act, regularising 444.44 sq. yards of land in favour of khatedar, Lal Chand son of Chauthmal, for which Patta has also been issued. Then the appellants also filed an additional affidavit on 12.9.2007, pleading inter-alia, that adjacent to the land in question, there is a Sidhpeeth Shri Panchmukhi Balaji Dham, a big temple, on which large public comes during the entire course of the day, and that the main gate of the temple is situated on the land in question, which fact was pointed out to the Collector, apart from the fact, that acquisition would result into increasing the danger of accidents etc. as the link road links Ratangarh to Bikaner, Sardar Shahar, Jaipur, Sujangarh road etc., and there is huge traffic for these highways; And this is the only one link road, through which, traffic of the Bikaner side, Sujangarh-Nagaur- 8 Jodhpur side and Sardarshahar-Sriganganagar side passes. The site plan in this regard has also been produced, and the copy of the representation given to the Collector has also been produced. Then on 1.7.2008, yet additional affidavit was filed by the appellant, enclosing the sketch map, being Annex. A, and therein showing the main gate of Sidhpeeth Shri Panchmukhi Balaji Dham, the photograph of the main gate, and also showing number of constructions, being raised on the land in question, by showing them in yellow colour. It is also alleged, that some of these constructions are houses, and shops, and that the constructions are actually occupied by the families. Then it is also alleged, that on the left side of the gate of Panchmukhi Balaji, a residential house has been constructed, photograph whereof has been produced, then 5 shops are constructed, wherein business is being transacted, 2 shops are under construction, then a tube well has been erected, then a restaurant has come up, then 4 shops are said to have been recently constructed, then serial No.9 is shown to be well, room, large water tank, small tanks etc. Then various other constructions, as detailed in the affidavit, are alleged to have been raised. Then it is also pleaded, that out of the land in question, regarding the portion of the land, 7 sale deeds have been produced, showing the plots to have been sold. Then photographs have been produced to show the existence of Samadhies, on the land in question. 9 We may observe that during course of hearing the correctness of the fact situation, as given in the affidavit dated 1.7.2008, was not disputed by the learned counsel for the respondents. Assailing the impugned order of the learned Single Judge, it was contended by learned counsel, that the appellant had filed the writ petition way-back on 7.12.96, and alongwith this writ, has produced Annex.13, the declaration made under Section 6, which is of the year 1995, and had challenged the entire land acquisition proceedings, commencing from the publication of the notification under Section 4, but the learned Single Judge has wrongly assumed the writ to have been filed only seeking to challenge notice under Section 4, though indirectly challenging the consequential proceedings. According to learned counsel after issuance of declaration under Section 6, Section 4 Notification independently could not have been challenged, and therefore, mention of challenge to notice under Section 4 was only for the purpose of giving the starting point of the commencement of the proceedings, but the entire land acquisition proceedings were challenged, which could not be dismissed on the ground of delay. It was also contended, that in the present case, apart from the fact, that the entire proceedings have been taken in a malafide and arbitrary 10 manner, initially government land was proposed to be suitable, but then, for reasons best known, rather at the behest of certain persons interested, instead of that land, by resorting to interpolations, the land in question has been got acquired, and that too by taking proceedings in a hotchpotch manner, inasmuch as, Annex.13 purports to invoke emergency powers under Section 17, and also purports to consider the representation under Section 5A, and as the things have come up, that even after the possession having purportedly been taken over, no steps have been taken for establishment of Krishi Upaj Mandi, rather day in and day out, the land is being regularised back, in the name of purchasers, or khatedars, by resorting to provisions of Section 90-B, which clearly negatived the very existence of the requirement for acquisition, so also clearly negatived the existence of any urgency, as contemplated by Section 17. In such circumstances, the writ could not be dismissed on the ground of delay. Regarding taking of possession by referring to Section 17(3-A) it was submitted, that as would be clear from Annex.R-4, and R-5, that no compensation was ever paid or offered, before or at the time of taking possession. This clearly shows, that the possession was never taken, and even if it is found to have been taken, it possibly could not have been taken, on the face of the injunctions contained in Section 17(3-A). 11 Learned counsel for the respondent, on the other hand, supported the impugned order. We have considered the submissions. In our view, it would not be appropriate for us, at this stage, to go into the details about the sustainability of the submissions made by learned counsel for the appellant, lest it might have prejudiced the case of either of the parties, but then, we are satisfied, that the learned Single Judge cannot be said to be correct in dismissing the writ petition, on the ground of delay. We are also satisfied, that the writ petition was not filed for challenging the notice under Section 4, rather entire land acquisition proceedings were challenged, and a declaration Annex.13 was filed with the writ petition, which was issued in July 1995, and thus it cannot be said that the writ petition was belated, apart from the fact, that simply because the matter was got adjourned on some dates for arguing the matter for admission, it would disentitle the petitioners to maintain the writ petition. The result of the aforesaid discussion is, that we allow the appeal, set aside the impugned order, and restore the matter back to the file of the learned Single Judge, to decide the matter on its own merits, in accordance with 12 law, instead of negativing it on the ground of delay. In view of the fact that since the appellants have produced various documents before us in appeal, we think it appropriate to permit the appellants, to appropriately amend the writ petition, so as to produce all these documents on record of the learned Single Judge, and to take all necessary pleadings in that regard. We also leave it open to the petitioners-appellants to take such further grounds to challenge the acquisition, as they stand advised to take. The respondents obviously would be entitled to file appropriate reply to such amended writ, if the petitioners seek to amend. To facilitate this, we also leave it open to the appellants, to take back the documents produced before us in appeal, so as to enable them to produce them before the learned Single Judge, and it is directed that if such request is made, Registry will return the documents, after placing photostat copies thereof on record of the appeal. The parties shall bear their own costs of this appeal. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /tarun/ 13