1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 1380 of 1999 DHARMENDRA KUMAR V/S STATE & ORS Mr. SUDHEER SHARMA, for the appellant / petitioner Mr. KL THAKUR, AAG & Mr. LR CHOUDHARY, for the respondent Date of Order : 21.2.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- This matter has been remanded by Hon'ble the Supreme Court vide judgment dt. 20.3.2007, and directing (requesting) the High Court to decide the appeal within a period of six months from the date of production of a copy of the order. Thereafter the matter was listed, and on 27.7.2007 adjournment was sought by the counsel for the appellant. Then, Krishi Upaj Mandi Samiti was impleaded as party. Then, vide order dt. 5.2.2008 the matter was ordered to be put up for final disposal. Accordingly, we have heard learned counsel appearing before us. The writ petition was filed by the petitioner appellant before this court on 9.9.1999, praying for prohibition against the S.D.O. Abu Road, prohibiting him 2 from proceeding further in respect of the acquisition of land in dispute, situated in Khasra Nos. 573, 574, 575, 579 and 583 of village Shantipur Tehsil Abu Road Dist. Sirohi, measuring 18 bighas and 12 biswas. Then, the prayer is made that the acquisition proceedings taken by the learned S.D.O. Abu Road, after 28.5.79 or 7.6.79, are without jurisdiction, and other consequential reliefs were claimed, including restraining the respondents from dispossessing the petitioner. The averments of the writ petition briefly were, after narrating the title of the petitioner, it was pleaded that on 4.7.78 notification under Section 4(1) of the Rajasthan Land Acquisition Act was issued. Then, a notification under Section 6 read with Section 17(4) of the Act was issued on 2.2.1979, published on 15.2.79. Then, it was pleaded that Annexure-2 shows, that S.D.O. Abu Road was appointed as Land Acquisition Officer. Then, it is pleaded that notifications under Section 4 and 6 were unsuccessfully challenged before this Court, and challenge failed upto Division Bench. Then, propriety of the requirement of land was sought to be disputed. Then, it was pleaded that S.D.O. Abu Road has been appointed as administrator, and that, a notification dt. 28.5.79 has been issued, published in the Gazette dt. 7.6.79, whereby instead of S.D.O. Abu Road, S.D.O. Sirohi, was appointed as Land Acquisition Officer. On that basis it was claimed that 3 the proceedings taken subsequently by S.D.O. Abu Road are without jurisdiction, including interim compensation awarded. Then, in para-18 it was pleaded, that no award has yet been made, and the Tehsildar, Abu Road has been directed to take possession of the land, which is without jurisdiction. Interalia with these factual averments, and by referring to provisions of Section 3(c) of the Land Acquisition Act, the writ petition had been filed. A proper comprehension of the writ petition shows, that the whole thrust of the writ petition was, on the basis of the fact, that the Land Acquisition Officer, Abu Road was substituted, and in his place Land Acquisition Officer, Sirohi was appointed as Land Acquisition Officer. The learned Single Judge found, that whatever may be the merit of the case, the petition is not worth entertaining, for other reasons, as copy of the notification under Section 4 had not been filed, nor the fact of death of Savita Bain has been disclosed, and the petitioner has given incomplete particulars. Then, it was pleaded that it was second round, in respect of the same acquisition proceedings. It was noticed that the petitioner's predecessor in interest Smt. Savita Bain contested the acquisition proceedings, up to the Division Bench, and the Division Bench judgment passed in special appeal has not been placed on record, for reasons best known. Thus it was found, that it was a case of filing successive writ petition. Thus the writ petition was found to be not maintainable, and has been dismissed. 4 An appeal against that order was filed, being the present one, and therein it was pleaded in para-2, that in the writ petition there was no prayer for cancellation of notification and declaration issued under Section 4 and Section 6 of the Land Acquisition Act, rather the only prayer was for a writ of prohibition, as mentioned above, and that the land acquisition proceedings being taken by the S.D.O. Mount Abu may be declared without jurisdiction, and be quashed, and the respondents may be restrained from dispossessing the petitioner, and that the ground of this relief was, that the S.D.O. Mount Abu was no more the Land Acquisition Officer, after 7.6.79. It was categorically stated, that when the validity of the notification was challenged, this was not a ground, and this could not have been a ground, and this was not in the knowledge of the petitioner. Then, it was pleaded in para-4, that when the learned Single Judge has positively found, that S.D.O. Mount Abu has no jurisdiction after 7.6.79, the writ petition could not have been dismissed, as this ground could not be taken in the previous writ petition, and it gave fresh cause of action; Thus non production of the previous orders etc. are of no consequence. Then again, in para-9 it was reiterated, that every proceedings taken by the S.D.O. Mount Abu, after 7.6.1979, are without jurisdiction, as there was inherent lack of jurisdiction with him, and in para-10 it has been pleaded, that award 5 has not been made within the statutory period provided under Section 11-A of the Act, which aspect has not been touched by the learned Single Judge. It is in these circumstances, that when the matter came up before this Court on 11.5.2001, it was noticed, that learned counsel for the appellant has relied upon a decision of this Court in Lalita Ben Vs. State of Rajasthan, being D.B. Civil Special Appeal No. 442/1999, decided on 7.5.2001, whereby this Court has quashed the award, being without jurisdiction, which fact was not controverted on the side of the respondent. Then, relying upon the contention, that the same award, as was passed in Lalita Ben's case, is in question in the present appeal, therefore, it was held, that the award passed by the S.D.O. Abu cannot be treated to be passed by the officer appointed, and the appeal was allowed, and the award was set aside. At this place we may pause, and clarify, that as noticed above, in the entire writ petition, or even in the special appeal, which was filed on 29.10.1999, it was no- where the case, that the award is under challenge, or that the award is required to be quashed. Obviously, also because, as appears, that the appeal was filed on 29.10.1999, while the award has been made, as appears from Annexure A-2, on 5.7.2000, and therefore, it was rightly contended in para-10, that the award has not yet been made. 6 Obviously, the award passed in Lalita Ben's case was also not before this Court, in this appeal, and as appears from the judgment in Lalita Ben's case, reported in 2001(2) RRT 1096, that the case of the petitioner therein was, that notwithstanding the objection, that the S.D.O. Abu has no jurisdiction to proceed to act under Section 11, passed the award on 30.4.1998. Thus, it is clear, that in Lalita Ben's case the award was passed on 30.4.1998, and no award was passed in the case of the appellant, till filing of the appeal, and obviously it was not under challenge. It is notwithstanding this, that the order dt. 11.5.2001 was obtained, rather this Court was persuaded to pass this order, by making wrong submission, that since the same award has been quashed as is the award in question in the present appeal, therefore, this impugned award was also quashed, even though no award was available before this court. It is in this sequence of events, that the matter was carried to Hon'ble the Supreme Court by the State Government, pointing out, that the award in the present case was passed by the concerned competent authority, being S.D.O. Sirohi, and not S.D.O. Abu Road, and therefore, the order impugned being dt. 11.5.2001 has been set aside, and the matter has been remanded, for deciding other questions sought to be argued by the counsel for the present 7 appellant, who was respondent before Hon'ble the Supreme Court. At this stage learned counsel for the appellant submitted, that he would like to withdraw the appeal unconditionally. It is a different thing, that we consider the request for withdrawing the appeal, or not, but the fact does remain, that the award, which was got set aside by the judgment dt. 11.5.2001, that order had already been set aside by Hon'ble the Supreme Court, and therefore, now the matter before us is, only regarding other challenge to the acquisition proceedings, which the learned counsel obviously seeks to withdraw. It is again a different story, that as observed above, while recapitulating the claim of the appellant, that the petitioner had confined the appeal, precisely to the proceedings taken subsequent to the notification Annexure-4, and did not challenge the notification under Section 4 and 6, rather has positively given up the challenge to these notifications. Therefore, even otherwise on merits there is nothing to be considered by this Court, pursuant to the remand by Hon'ble the Supreme Court. The appeal is, therefore, dismissed. As noticed above, it is writ large, that this Court was persuaded to pass the order dt. 11.5.2001, 8 setting aside the award, precisely on account of the wrong submission, made by the learned counsel for the petitioner appellant, that the same award had been set aside by this Court, in Lalita Ben's case, while firstly the award was not under challenge before this Court, and secondly the award in Lalita Ben's case was passed in the year 1998 (30.4.1998), while in the present case the award had not even been passed till filing of the appeal. Likewise in Lalita Ben's case, award was set aside on the ground, that it had been passed by the authority who ceased to be the competent authority, in view of the notification, being present Annexure-4, and that was the submission made before this Court, that the award has also been passed in the present case by the same authority, which as a matter of fact is also incorrect, and has been found by the Hon'ble Supreme Court to be incorrect. Thus, by the conduct of the petitioner, this Court has been persuaded to pass a wrong order, which order had to be set aside by Hon'ble the Supreme Court. Thus apart from clearly misleading the Division Bench of this court, by the above conduct the appellant did put the State Government to suffer the ordeal of approaching Hon’ble the Supreme Court. In such circumstances we are constrained to dismiss the appeal, imposing an exemplary compensatory cost of Rs. 50,000/- on the petitioner-appellant. The costs are required to be recovered from the petitioner, from the 9 amount of award, if not already disbursed, and if disbursed, by taking recourse to other procedure, as is provided for recovery of Arrears of Land Revenue, under the Rajasthan Land Revenue Act. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. /sushil/