1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. CIVIL SPECIAL APPEAL (W)NO.661/2007 Ram Chandra & Ors. Vs. The State of Rajasthan & Ors. Date of Judgment : : 06.12.2010 HON’BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON’BLE MR.JUSTICE PRAKASH TATIA Mr. M.R.Singhvi,for the appellants. Mr. Sajjan Singh, Mr. Yashwant Mehta, for the respondents. <><><> This intra-court appeal has been preferred challenging the legality of the order of dismissal of the writ application assailing notification issued under Section 4 of the Land Acquisition Act. The facts in short are that initially a notification under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') was issued on 23.3.1989. Thereafter this notification was withdrawn and later on, another notification dated 9.10.1991 was issued. In the initial notification which was issued on 23.3.1989, though it was notified that land of Khasra No.255/372 was proposed to be acquired but its ownership was not shown to be that of the petitioners. Petitioners received a notice dated 26.9.1992 under Section 9(1) of the Act pointing out that Section 17(4) had been invoked, and in that notice Khasra No.255/372 was shown, likewise, Khasra No.107 was also mentioned. Consequently, writ application was filed assailing the acquisition on the ground that land of Khasra No.255/372 was not notified to be acquired. The land of Ladu Ram was proposed to be 2 acquired not that of the petitioners. Declaration under Section 6 read with Section 17(4) had been issued after expiry of one year from the date of issuance of notification under Section 4(1) which was issued on 22.3.1990. In the reply, it was contended by the Housing Board that the land comprised in Khasra No.255/372 had been notified to be acquired on notification under Section 4 of the Act. Earlier notification issued under Section 4 was withdrawn. Another notification under Section 4 of the Act was issued on 9.10.1991 wherein at item No.5, land bearing Survey No.255/372 was shown. Thereafter on coming to know of the fact that ownership of Survey No.255/372 was wrongly shown in the name of Ladu Ram, while issuing declaration under Section 6 of the Act on 3.4.1992, the khasra number was rightly shown in the ownership of the petitioners. The declaration and notification were duly notified. The petitioners have assailed the notification dated 23.3.1989 whereas the proceedings have been taken on the basis of notification dated 9.10.1991. The Single Bench has dismissed the writ petition on the ground that in the notification dated 9.10.1991, the Survey No.255/372 has been clearly mentioned at item No.5. Similar writ petition has also been dismissed by this Court way back in the year 1999. Aggrieved by the said order, the instant appeal has been preferred. Shri M.R. Singhvi, learned counsel appearing on behalf of the appellants submitted that in the notifications issued under Section 4 on 23.3.1989 and on 9.10.1991, though the Khasra No.255/372 was mentioned but its ownership was shown to be of Ladu Ram, not that 3 of the petitioners. Enquiry under Section 5A was dispensed with and thus, notifications issued under Section 4 were illegal. It was necessary to mention the name of the owner as against the survey number. The land of Ladu Ram was proposed to be acquired not that of the petitioners. Correcting the error in declaration issued under Section 6 could not be said to be enough so as to validate the acquisition. Learned counsel has also submitted that award has not been passed so far. As per Section 11 A of the Act, acquisition proceedings stand lapsed on expiry of period of two years. Shri Sajjan Singh and Shri Yashwant Mehta, learned counsel appearing on behalf of the respondents have supported the order passed by the Single Bench and contended that it was not necessary to mention the survey numbers or its ownership in the notification issued under Section 4, only locality was required to be specified therein. In any case, when the khasra number was clearly mentioned, thus, it left no room for the owner of the land to challenge the acquisition. Section 4 authorises to enter upon the land and to inspect and to make survey etc. Thereafter declaration was issued with respect to the land which is found suitable under Section 6 of the Act. There had been interim stay on taking of the possession, thus as per explanation of Section 11A, it cannot be said that proceedings have lapsed. Reliance has been placed by the learned counsel for the respondent on a decision of the Apex Court in M. Ramalinga Thevar Vs. State of Tamil Nadu (2000) 4 SCC 322. Coming to first submission raised by Mr. M.R. Singhvi, learned counsel appearing on behalf of the appellant that as against the Khasra No.255/372, name of the owner was mentioned as Ladu 4 Ram whereas the name of the petitioners was not indicated, in our opinion, has no legs to stand. The requirement of Section 4 of the Act is that merely locality with precision has to be specified, it will be relevant to quote Section 4(1) of the Act: “Section 4(1) of the Act makes it clear that land in any locality 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 in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification].” The notification issued under Section 4 is qualified with the word 'locality' not with respect to the land. Section 4(2) also makes it clear that once notification under Section 4 of the Act is issued, it is open to enter upon and survey and take levels of any land in such locality; to dig or bore into the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle. Locality was specified correctly. The survey numbers were mentioned and that was enough to put appellant on guard. It was followed by declaration under section 6 of the Act. In the declaration under section 6, the survey numbers were precisely mentioned and names of the petitioners were also mentioned owner of the same, the enquiry under Section 5A stood dispensed with. Consequently, it 5 can not be said that there was any such infirmity in the notification issued under Section 4 of the Act so as to invalidate it. Merely wrong mentioning of ownership of survey number did not vitiate the notification issued under Section 4. Thus, we are not satisfied with the first submission as to invalidating of notification under Section 4 of the Act raised by the counsel for the appellant, the same stands rejected. Now coming to the second and last submission raised by Shri M.R. Sighvi, learned counsel appearing on behalf of the appellant that award has not been passed so far, thus the proceedings stands lapsed. In this regard, Section 11A is quoted below: “Section 11A. Period within which an award shall be made.-(1) The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. 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.” It is apparent from the explanation that in case “any action” is stayed by an order of the Court, the period shall be excluded while computing the period of two years from passing of the award. It is not in dispute that in the instant case taking over the possession of the land had been stayed admittedly within two years, therefore, we find that proceedings have not lapsed. It is open for the Land Acquisition 6 Officer to pass the award. Aforesaid reasonings are also supported by the decision rendered in M. Ramalinga Thevar Vs. State of Tamil Nadu (Supra). Shri M.R. Singhvi, learned counsel lastly has prayed for raising the objections before the State Government for allotment of land under circular issued by it. Appellant is at liberty to do so. The intra-court appeal being merit less deserves dismissal, is hereby dismissed. However, the parties to bear their own cost. (PRAKASH TATIA), J. (ARUN MISHRA), C.J. Praveen