SS^^—^-.y^Ssg^p- CF0000110T67' ^ • '-I AMENDED PETITION IN THE HIGH COURT OF CHHATTSIGARH AT BILASPUR ,^ lVj P' -MISC'. ^ETmON-NO. 2355 OF 1990 '•^ PETITIONER RESPONDENTS JOO' o^^^ ^' Kuber Grih Nirman Sahakari Samiti Maryadit, Rohinipuram, Raipur District Raipur, through its Chairman Smt. SushiJa Tiwari wife of shri Rupendra Tiwari, aged 34 years, Resident of C- 294 Rohinipuram, Raipur(C.G.) VERSUS 1. The State of M. P. Through The Secretary Department of Revenue, Vallabh Bhawan Bhopal M.P. 2. The Collector, Raipur, District Raipur 3. M.P. Housing Board, through its Executive Engineer, Raipur(M.P.) 4. Joint Director, Town and Country Planning Department, Raipur (M.P.) 5. Th©State of Chhattisgarh, through the Secretary, Department of Revenue, D.K.S. Bhawan, Raipur (C.G.) 6. Chhattisgarh Housing Board, through its executive Engineer, Raipur (C.G.). PETITION UNDER ARTICLES 226 & 227 CONSTITUTION OF INDIA FOR WRITS IN THE NATURE OF CERTIORARI. MANDAMUS ETC, AND FOR APPROPRIATE FURTHERDIRECT10NS ^ e, ^' ,.,^^^'^>, //^. ft ^L^^SS^ 1^ ^" ^F^ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 2355 of 1990 PETITIONER RESPQNDENTS Kuber Grih Nirman Sahakari Samiti Maryadit. VERSUS The State ofM.P. & Others. TK Post for pronouncement ofthe order on _/^_ day ofNovember, 2010 Sd/- Satish K. Agnihotri Judge ^9 HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 2355 of 1990 PETITIONER RESPONDENTS Kuber Grih Nirman Sahakari Samiti Maryadit. VERSUS The State ofM.P. & Others. PETITION UNDER ARTICLE 226 & 227 CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri A.K.Prasad, Advocate for the petitioner. Shri A.V.Shridhar, Panel Lawyer for the State/respondent No. 1,2 4 and 5. Shri Sanjay Patel, Advocate for the respondent No. 6. Shri V.G.Tamaskar, Advocate for the Intervenors. JUDGMENT&QRDER (Delivered on ./^:^ay of November, 2010) 1. The petitioner seeks to quash the award dated 18.05.1990 (Annexure P/7) to the extent of acquisition ofthe land bearing Khasra No. 83/35, Patwari Circle No. 104, in village Danganiya, District Raipur. 2. The brieffacts, in nutshell, are that the petitioner was initially registered as Karmachari Grah Nirman Sahakari Samiti Maryadit, Rohinipuram, Raipur, as a housing cooperative society under the provisions of Cooperative Societies Act, 1960. The petitioner-Society purchased a parcel ofland, which is disputed property in the instant petition, from one Vishal son of Govind Sahu, by a registered sale deed dated 4.10.1983 (Annexure P/l) to the extent of 1856 sq.mts., bearing Khasra No.83/18. 3. The land in question was mutated in the name ofthe petitioner by order dated 25.04.1984. Thereafter, the said plot was renumbered as Khasra "•^ ^ 1 w No. 83/35 from 83/18 (Annexure P/2). The petitioner-Society applied for approval of its layout plan before the Town and Country Development Department. The Joint Director, Town & Country Development Department, Raipur approved the layout plan for Khasra No. 83/18 (new Number 83/35) by order dated 17.12.1985 (Annexure P/3) alongwith other Khasra numbers. The plot in dispute was divided amongst eight persons and possession ofthe plots thereafter was handed over to them. The State Govemment issued a notification under Section 4(1) ofthe Land Acquisition Act, 1894 (hereinafter referred to as (the Act, 1894)) to acquire the land admeasuring 44.27 acres of village Danganiya, situated at Patwari Halka No. 104 for the purpose of housing scheme under HUDCO. On the same date, a declaration was published under section 6 ofthe Act, 1894 (Annexure P/4) in the official gazette detailing the Khasra numbers, area in hectare and acres. There was no mention ofthe plot ofthe petitioner bearing Khasra No. 83/18 (old number) or 83/35 (new number). The said notificiation provided for dispensing with the procedure laid down under section 5(A) ofthe Act, 1894 and further intention to take steps under section 17 of the Act, 1894 for taking ofpossession ofthe land in case of emergency. The petitioner-Society was, thereafter, not noticed at any stage of time, except on 11.05.1990 (Annexure P/5), intimating the petitioner-Society the compensation determined and assed at Rs. 54,053/- and to appear on 23.05.1990 to collectthe compensation amount. The said notice was never sent to the petitioner-Society and in fact, the same was collected by the vice Chairman ofthe petitioner-Society without intimation to the Society. It is informed that the said notice was received even by the Vice Chairman on 03.07.1990. The Land Acquisition Officer^ passed ^y the fmal award on 18.05.1990 (Annexure P/7) wherein at item No. 23, Khasra No. 83/35 was, for the first time, mentioned in the list of the land acquired and compensation determined. Thus, the petition was filed immediately on 25.08.1990. Shri A.K.Prasad, leamed counsel appearing for the petitioner-Soceity would submit that there was no occasion to challenge the validity and legality ofthe notifications under section 4(1) and 6 ofthe Act, 1894 as there was no mention of the property in dispute in declaration dated 16.02.1989 (Annexure P/4). There was no khasra number mentioned, either old or new, which came into existence after the sale of the property in favour ofthe petitioner society and mutation was directed on 25.04.1984. Thus, the acquisition and award falls on the ground as the respondent authorities have failed to comply with the mandatory requirement ofpublication ofnotice and 4eclaration, which precede the acquisition ofland by passing the award. On the other hand, Shri Sanjay Patel, leamed counsel appearing for the respondent-No. 6, Chhattisgarh Housing Board, would submit fhat the land in dispute was numbered as Khasra No. 83/6 at the time notification under section 4 and 6 ofthe Act, 1894 was published on 16.02.1989. A person, namely; Harishankar Madariya, who was in the immediate neighbourhood of the petitioner-Society., had purchased a parcel ofthe same land from Vishal on 12.10.1983 appeared before the Land Acquisition Officer and raised objection with regard to notifications. His land was also acquired and compensation to that effect had already been paid to him. Shri Patel would further submit that Khasra No. 83 of35 was not in existence in the revenue records till the date ofnotification and original Khasra Number 83/6 area 1.54 hectares ^' was notified in the notification. Re-numbering of Khasra numbers took place after notifications were issued and thereafter, in the award., Khasra Number 83/35 was rightly indicated after determining the compensation. Thus, the petitioner-Society cannot raise objection at this stage after award has been passed. In support of his contention, Shri Patel would rely on the decision ofthe Supreme Court in MayGeorge v. Special Tahsildar & Others , Swarna Lata etc. v. State ofHaryana & Others2, Smt. Gian Kaur Suri & Etc. v. U.O.I. & Others , Ramniklal N. Bhutta & Another v. State ofMaharashtra & Others . 6. Shri A.V.Shridhar, leamed Panel Lawyer appearing for the State/respondent No. 1, 2, 4 and 5 would adopt the submission made by leamed counsel appearing for the respondent No. 6. 7. The application for intervention, filed by the intervenors viz. Jaiprakash Chandravanshi, S.K.Parganiha and Smt. Saroj Kannoje, was allowed on 21.06.2007, by this Court. Shri V.G.Tamaskar, leamed counsel appearing for the inter^enors would support the submissions made by leamed counsel for the petitioner and would submit that the intervenors are the subsequent allottees ofthe plots in the property in dispute. 8. Having heard learned counsel appearing for the parties, pemsed the pleadings and documents appended thereto, it appears that the land in question was purchased by the petitioner society by aregistered sale deed dated 04.10.1983 (Annexure P/l). In the sale deed, Khasra number mentioned was 83/18 wherefrom a portion admeasuring 1856 sq.mts. was sold to the petitioner-Society. Thereafter, the revenue records (Annexure P/2) indicates mutation in the name ofthe petitioner-Society 12010AIRSCW3475 22010AIRSCW2669 3 AIR 2005 Delhi 394 4AIR 1997 SC 1236 ^ ;:^^^ .^' ..^^^ ^-y '^i'-fe.5^i't" ^7' 9. 10. 11. and the plot was re-numbered as Khasra No. 83/35 by order dated 25.04.1984. A notice dated 11.05.1990 issued by the Land Acquisitoin Officer also indicates Khasra number 83/35 which appears to have been received on 03.07.1990, afiter passing ofthe award. The details ofthe property shown in the sale-deed reads as under: "f^?Tc^T WTf^T -s^ f2|c|^;u| :- '^FWft ?^ ^ ^l^^l^l ^F^T 1^ I(^Tcft Rl'Rld. ^pr f^RT^T ^FRT '•TFsR ~Sf ^RT '•fr^ f^TT ^PTT t PT^TT ^Tt TTTR "f^PFT ^Tg? ^ ^itm' ^r ^ ^itrR TTPT ^^iPi^ii Tr f^r?r t PT^TT f^NHcbl 4dc||^| -^cpT -^TRR 104 ^l^^ f^r?T^ ^gcT Tpry 1 n?^r "cr f^rT^pT^ ^TOTO 11 ^FRT W=^ . ^piTT 83/18 1856 c|44lc^ On pemsal of the award, it is nowhere found that there was either any reference ofthe change ofKhasra number from 83/6 to 83/35 except in the list ofland details and compensation determined for the same for the first time at serial No. 23, Khasra No. 83/35 admeasuring 0.46 was mentioned with compensation to the tune ofRs. 54,053/-. Contention of Shri Patel in respect of the aforestated facts is not supported by any documents. Rather, the contention of the petitioner appears to be fully supported by the revenue records produced by the petitioner. Shri Patel relies on a report dated 12.01.1991 ofthe Patwari, Patwari Halka No. 104 (Annexure R/8)., which is as follows. Khasra Number as under: "^ 1988/89 ^ ^TT^ cFTT^ f^ Tj4 ^T^i ^^UI ?t~^ ^ 'cpR^T ftRTT^ "cTc^ 'rfrf^" ^t ffP<T ^^^'^'\ •<:.' rf ^'" -^•!1; • -:';;'-':';;.;' • '::/'-.'.:':'^ ^ ^1^4)d 4.70 ^f^ ^T ^Nf t^R^ ^FRT ^ ^RT '?TT6RT ^ ^Trf^KT f^TT TPTT 1 T^g ^r 83/6 1/54 83/92 0.17 83/29 0.07 |4.70^f^t| 83/18 0.80 83/20 0.90 83/2 1.22 'cl^TH ^ 4U^C|u| f^t I^TT'^TT ^PT sm 83/6 1.54 "fiR^ ^- 83/6 0.85 R^-lld ^^ f^PT) 83/35 0.46 cb4-c|l^l ^ f$mN 83/36 0.23 ^R^I'chN' 'R^f^TT f^Trf^cT f^TT 7PTT 11 12. Argument of Shri Patel that the original Khasra No. 83/6 was divided and re-numbered as 83/6, 83/35 after issue of notification is contrary to the facts as aforestated in the sale deed (Annexure - P/l) revenue records (Annexure P/2) duly approved by the revenue officers. Thus, it cannot be held tfaat the KhasraNo. 83/35 came into existence only after publication of the notifications under section 4(1) and 6 ofthe Act, 1894. Even in the year 1984 when the sale took place, the sale deed clearly mentioned Khasra No. 83/18 and afiter sale of a portion of Khasra No. 83/18, it appears, was re-numbered as khasra No.83/35. 13. Further submission of Shri Patel that Harishankar Madariya who was immediate neighbour of the petitioner has approached the Land Acquisition Officer, thus, the petitioner kriew about the land acquisition proceeding, does not merit acceptance. When there was no reference of KHasra No. 83/18 (old number) or 83/35 (new number), it is common practice to take a view that the land wherein housing society has already constmcted the plots, might have been left out in the acquisition. After passing ofthe award, it is evident that the land has not vested in the ^ 14. 15. 16. State as this Court, by order dated 14.09.1990, directed that "petitoiner's possession was not to be disturbed". There is no dispute that the petitioner and its members are continuing in possession today. Section 4 and section 6 ofthe Act, 1894 are mandatory as publication of preliminary notification under section 4(1) reads that^a notification to that effect shall be published in the Official Gazette". Section 6(2) also provides that every declaration shall be published in the official gazette. Even otherwise, it is not the case of the respondents that publication of notice under section 4(1) and publication of declaration under section 6 of the Act, 1894 are not mandatory and the defect can be cured subsequently by affording an opportunity of hearing to the land owners even after passing ofthe award. In May George , relied on by Shri Patel, there was no dispute with regard to mention ofthe land under section 4 and 6 notification. The objection was with regard the purpose of notification. Thus, the ratio laid down by the Supreme Court, in the said case, is not applicable to the facts of the case on hand as notification and challenge to the award was made in the year 1986, passing of the Award on. The Supreme Court held that the validity ofthe issuance ofnotification under section 9(3) would not adversely affect the subsequent proceedings including the award after land vested in the State free from all encumbrances which cannot be divested even if there is some irregularities in the acquisition proceedings. The facts ofthe instant case are different and as such, the same is not applicable to the case on hand. In Swarnalata etc. , the question was with regard to publication of declaration under section 6 ofthe Act, 1894 not in a newspaper having wide circulation. In the case on hand, there was no publication ofnotice ^^,;;^.:2 1^ 4 ^:^? ^? IV^ ^ ^-o under section 4 and under section 6 ofthe Act, 1894 in respect ofthe land in dispute at any stage when it is well settled that publication of notice under section 4(1) and declaration under section 6 are mandatory in nature. Furthe, the case of Gian Kaur Suri is also not applicable to the facts ofthe case. 17. In Ramniklal N. Bhutta4 , there was a proper publication of notice under section 4 and 6 and as such, the same is not applicable to the facts ofthe mstant case. 18. In Madhya Pradesh Housing Board v. Mohd. Shafi & Others5, the impugned notification under section 4 was held to be mandatory and the same was held vitiated on account of being vague and for non- compliance ofthe mandatory requirement ofthe Act, 1894. In the case on hand, it was not only vague by way but there was no mention about the land in dispute either by way of old khasra number or new khasra number which admittedly was in existence before publication of notification and declaration under Section 6 ofthe Act, 1894. Thus, the entire proceeding in respect of Khasra No. 83/35 (new number) and 83/18 (old number) is vitiated. In Mohd. Shafi & Others6 the Supreme Court observed as under: "8. It is settled law that the process of acquisition has to start with a notification issued under Section 4 of the Act, which ismandatory, and even in case of urgency, the issuance of notification under Section 4 is a condition precedent to the exercise of any further powers under the Act. Any otificatoin which is aimed at depriying a man of his property, issued under Section4 of the Land Acquisition Act has to be strictly constmed and any serious lapse on the part of the acquiring authority would vitiate the proceedings and cannot be ignored by the ' (1992)28cc 168 -^/ courts. The object of issuing a otificatoin under Section 4 of the Act is twofold. First, it is a public announcement by the govemment and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the govemment for the "public purpose" mentioned therein; and secondly, it authorizes the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned Section 4(2) ofthe Act." 19. The Supreme Court in Hindustan Petroleum Corpn. Ltd V. Darius Shapur Chenai and Others, observed as under : 28. Although assignment of reasons is the part of principles of natural justice, necessity thereof may be taken away by a statute either expressly . or by necessary implication. A declaration contained in a notification issued under Section 6 ofthe Act need not contain any reason but such a notification must precede the decision of the appropriate Govemment. When a decision is required to be taken after giving an opportunity of hearing to a person who may suffer civil or evil consequences by reason thereof., the same would mean an effective hearing. 29. The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharam observed that in such a case the provisions of the statute should be strictly constmed as it deprives a person ofhis land without consent. [See also Khub Chand v. State of Rajasthan and CCE v. Orient Fabrics (P) Ltd.] There cannot, therefore, be any doubt that in a case of this nature due application of mind on the part of the statutory authority was imperative, 20. Section 6 ofthe Act, 1894 i.e. declaration that land is required for a public purpose are in two parts. Under sub-section (1) there should be a satisfaction ofthe State Govemment under the signature of a Secretary ' (2005) 7 SCC 627 ^ ••^^h. •f -^' ,..,:.;^11 10 to the State Govemment and thereafter, the satisfaction detailing the lands khasra numbers shall be published in the official gazette under sub-section (2) ofSection 6 ofthe Ac,1894. 21. In the case on hand, by omitting the old khasra number i.e. 83/18 or new khasra number i.e. 83/35, which came into existence prior to issuance of notification under Section 4, in the declaration under Section 6 of the Act, 1894, it is clear that the State Govemment was not satisfied with the acquisition of the said piece ofland. Compliance ofprovisions of Section 6 ofthe Act, 1894 is mandatory. For want ofcompliance ofthe mandatory provision, the proceeding in respect of land in dispute is vitiated. 22. Applying the well settled principle of law to the facts of the case on hand, and for the reasons stated hereinabove, the acquisition proceeding of the land in dispute bearing Khasra No. 83/35 (new number) and 83/18 (old number) purchased by the petitioner-Society and thereafter, allotted to the members of the society is quashed. The writ petition is allowed to the above extent 23. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge Amit