- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 873 of 1997 KHIM RAJ V/S STATE & ANR Mr. LR MEHTA assisted by Mr. RAMIT MEHTA & Mr. AVINASH ACHARYA, for the appellant / petitioner None present for the respondent Date of Order : 29.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- This appeal has been filed by the appellant against the judgment of the learned Single Judge dated 25.4.97 dismissing the writ petition. By the writ petition, the appellant sought to challenge the acquisition proceedings taken with respect to the land in question. The case of the petitioner is, that the land in question belongs to him, with respect to which he produced Sanad. Then it is alleged that a notification under Section 4(1) of the Rajasthan Land Acquisition Act, 1953, herein after to be referred to as ‘the act’, was - 2 - issued on 21.4.82, which has been produced as Annex.7, that was published in the official Gazette on 29.4.82, copy whereof has been produced as Annex.7A. Then the petitioner applied for copy of the document, showing as to whether the notification has been published locally, or not, and the reply received by him, informing that it has not been so affixed, has been produced as Annex.9. Then with these, on 20.4.86 a notification was issued under Section 6, read with Section 17(4) of the act, which was published in official Gazette on 8.5.86, which has been produced as Annex.11. These two notifications, Annex.7 and 11 are challenged, inter-alia on the ground, that powers under Section 17(4) have been illegally invoked, as there is nothing to show, that the competent authority was satisfied about the urgency. Then the nature of urgency, as required has been pleaded. Then it is also contended, that Section 4 (1) notification was issued way-back in the year 1982, and notification under Section 6 has been issued after expiry of more than three and a half years. Then some merits of the requirements have also been highlighted. No reply to the writ petition was filed on behalf of the respondents. However, learned Single Judge held, that objections with regard to notification of April 1982 cannot be raised in the year 1986, therefore, objections to - 3 - that notification were not considered. Then regarding Annex.11, all that was held was, that in the said notification, it is clearly mentioned, that land is required for the public purpose, and the purpose mentioned was endorsed to be the public purpose. Then regarding satisfaction also, the recital in the notification was relied upon, and thus, the writ petition was dismissed. Additionally it was also observed, that Krishi Upaj Mandi, for whom the land was acquired, was a necessary party, which has not been impleaded, therefore also, the writ petition was dismissed. Assailing the impugned judgment, it is contended by learned counsel for the appellant, that the entire proceedings as initiated and as concluded, culminating into Annex.11, are wholly contrary to law, as it then prevailed. It is contended that a look at Annex.7 and 7A shows, that that is only a notification under Section 4(1) of the act, and no notification under Section 4(5) has been issued, which is a sine-qua-non before proceeding further, including issuance of notification under Section 6, even read with Section 17, and for this purpose, learned counsel relied upon a Division Bench Judgment of this Court, in M/s. Rajasthan Udyog Vs. State of Rajasthan, reported in 1976 WLN 835. It is then contended that according to language of Section 4, the notification under Section 4(1) was also required to be locally published. Then even the - 4 - declaration made under Section 6, is also required to be published in accordance with the provisions of Section 45 (4), which has not been published. Nobody appears for the respondents, and no reply has been filed, as noticed above, in the writ petition. In this file of appeal, we find a rejoinder available, filed by the petitioner in March 1999, but then we don't find any reply, to which this rejoinder has been filed. Be that as it may. Before proceeding further it may be observed, that by the impugned judgment learned Single Judge has decided two writ petitions, being 1211/86 and 1212/86. This appeal relates to matter covered by writ No.1212/86. We made efforts to find out, as to what happened to the other matter, and in that process came to learn, that another appeal being D.B. S.A.W. No.874/97 was filed, challenging the order passed in writ No.1211/86, and that was allowed by the Division Bench, vide order dated 18.8.98, holding that the learned Single Judge was in error in coming to the conclusion that Krishi Upaj Mandi was necessary party, therefore, the judgment was set aside, and the matter was remanded back to the learned Single Judge, to decide on merits. Thereafter, the matter was again taken up by learned Single Judge, and the writ was allowed vide judgment dated 16.11.99. In that case, however, part of the - 5 - land was given over by the petitioner therein, by private negotiations, and the Krishi Upaj Mandi Samiti was also found to have been established, and the acquisition, with respect to rest of the land, was quashed. Coming to the merits of this writ petition, and the impugned judgment, in view of the judgment of the Division Bench dated 18.8.98, rendered in D.B. S.A.W. No.874/97, this question stands answered in favour of the petitioner, that Krishi Upaj Mandi Samiti was not a necessary party. In that view of the matter, we need not go into this question, and this part of the finding of the learned Single Judge is set aside. Then coming to the merits of the acquisition proceedings, suffice it to observe, that on an overall comprehension what we find is, that the entire proceedings have been conducted in a manner, wholly contrary to the provisions of law, even if considered from that stand point whatever. To start with, a look at Annex.7 shows, that it purports to be notification issued under Section 4(1) of the Act. Then a look at the provisions of Section 4 of the Act shows, that it is only preliminary notification, authorising to undertake 7 operations enumerated in sub- section (1), and thereafter the person making such inquiry, - 6 - is to submit a report to the Collector, and thereafter, the Collector, upon receipt of such report, under sub-section (5), is required to cause to be given a notice to the head of the department, on whose instance, the order under sub- section (1) shall have been made, and to all persons, reported under clause (g) of sub-section (1), to be interested in the land proposed, a notice in the prescribed form, of the proposed acquisition, and a public notice to the like effect, at convenient place, on or near about the land proposed to be acquired. This, in conjunction with the provisions of Section 5-A shows, that any person interested in any land, with respect to which notice has been issued under sub-section (5) of section 4, may within 30 days after service of public notice, in the manner provided in Section 45(4), submits objections against the acquisition, which objections are to be heard in accordance with the other provisions of the Act. Then a declaration under Section 6 can be made. Likewise, even for taking action under Section 17, the publication of notification under Section 4(1) is mandatory. Then a look at sub-section (1) shows that this itself provides, that the order made thereunder is required to be published in accordance with the provisions of Section 45(4). And Section 45(4) reads as under:- "45(4) A public notice required to be given under this Act shall be in writing and shall be signed and sealed by the officer giving the same. It shall be - 7 - affixed at a notice board of the office of such officer nd the copies of such notice shall be affixed on the notice board of the Tehsil concerned and on the notice board of the Village Panchayat, if any, constituted under any law for the time being in force. Its contents shall be made widely known in the locality in which the land proposed to be acquired is situated, by affixing copies thereof at some convenient place on or near about such land and in other conspicuous public places in the locality or by publishing the same by beat of drums or by advertisement in a newspaper having wide circulation in the locality or by any two or ore of these means. Thus, the whole long and short out come of these various provisions is, firstly that the notification under Section 4(1) is required to be published at some convenient place on or near about the land and in other conspicuous places of locality by beat of drums or by advertisement in a newspaper having wide circulation in the locality or by any two or more of these means. Likewise, a notice under Section 4(5) is a sine-qua-non, before any action can be taken under Section 5A, or Section 6. In this regard, we may rely upon the Division Bench Judgment in M/s. Rajasthan Udyog's case. In the present case, a look at Annex.9 shows, that it was clearly certified to the petitioner, that the publication of the notifications whether under Section 4(1) has not been done, as required by Section 45, and a notification under Section 4(5) is not at all shown to have been issued. In that view of the matter, no action could be taken under Section 6, even with the assistance of Section 17 of the Act. - 8 - Yet another aspect of the matter is, that according to the proviso to Section 6, the declaration under Section 6 could be made, within a period of 3 years of the issuance of notice under Section 4(5). In the present case, since admittedly no notice under Section 4(5) has been issued, and if the things were to be computed from Annex.7, still before issuance of Annex.11 more than 3 years had already elapsed. Thus, we are left with no alternative, but to quash Annex.7, 7A and 11, so also the entire land acquisition proceedings. Accordingly, the appeal is allowed, and the writ petition is also, in turn allowed, and the Annex.7, 7A, and 11 are all quashed, and the entire land acquisition proceedings, with respect to the land in question, are quashed. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. /tarun/