1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : 1. S.B. Civil Writ Petition No.2396/2006. (Akshat Export & Another Vs. State of Rajasthan & Others) 2. S.B. Civil Writ Petition No.2397/2006. (Raj Export & Another Vs. State of Rajasthan & Others) 3. S.B. Civil Writ Petition No.2659/2006. (Ashok Mehta Vs. State of Rajasthan & Others) DATE OF ORDER : May 29th, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Reportable : Mr. J.P. Joshi for the petitioners. Mr. R.L. Jangid, Addl. Advocate General. Mr. V.K. Mathur for the Union of India. BY THE COURT : All these writ petitions involve common question of law and facts and as such they are being disposed of by this common order/judgment. For the sake of convenience, facts of S.B. Civil Writ Petition No.2396/1996, Akshat Export & Another Vs. State of Rajasthan & Others are taken into consideration. The petitioners are challenging the validity of notification issued on 01.10.2005 under Section 4 (1) of the Land Acquisition Act, 1994 (Annex.-3) and notification dated 31.03.2006 (Annex.-5) and prayed for quashing the same. Further, it is prayed that the respondents may be restrained 2 from taking further proceedings pursuant to the notifications issued under Sections 4 (1) and 6 (1) of the Land Acquisition Act; and, so also, not to dispossess the petitioners from the land in question in pursuance of the acquisition proceedings initiated under the said notifications. The main contention of the petitioners is that the petitioners purchased duly converted abadi land in village Rathodon ka Guda, Tehsil Girwa (District Udaipur) by way of registered sale-deed and land measuring 7600 sq mtr comprised of Araji No.468/63, 469/63, 470, 62 min, 471/63, 61 min, 472/62 and 473/63 has been mutated in the name of the petitioners and names of the petitioners have been entered into the revenue record of village Rathodon ka Guda, Tehsil Girwa. The State Government issued notification under Section 4 (1) of the Land Acquisition Act on 01.10.2005 for acquiring the land for establishment of the headquarters of Reserve Battalion of BSF. In pursuance of the said notification, the petitioners along with other khatedars submitted their objections before the Land Acquisition Officer/Collector under Section 5A of the Act against the proposed acquisition. The Land Acquisition Officer, however, without considering the objections and without providing opportunity of hearing, as provided under Section 5A of the Act, issued notification under Section 6 (1) of the Act and the same was published in the news-paper “Dainik Bhaskar” on 09.04.2006, whereby, the land mentioned in notification issued under Section 4 (1) of the Act is sought to be acquired. 3 Learned counsel for the petitioners mainly submits that as per Section 5A of the Act, it was mandatory for the Land Acquisition Officer to provide opportunity of hearing at the time of deciding objections so raised by the petitioners and other khatedars of the land; but, no opportunity of hearing was given to the petitioners or other khatedars upon the objections raised by them, therefore, the whole proceedings of acquiring the land is vitiated and deserves to be set aside because the respondents have violated the mandatory provisions of the Act which is sub- section (2) of Section 5A of the Act of 1894. Learned counsel for the petitioners, while inviting attention towards objections Annex.-2, submits that detailed objections were raised against acquisition of the land in question, but, none of the grounds taken by the petitioners was considered, therefore, the whole proceedings in pursuance of the notification Annex.-3 issued under Section 4 (1) is vitiated and deserves to be quashed because the respondents have failed to comply with the mandatory provisions of the Act of 1894. Learned counsel for the petitioners while placing reliance upon the judgments of the apex Court reported in AIR 1974 SC 1868 and AIR 1964 SC 1217 submits that in both these judgments the Hon'ble Supreme Court has held that compliance of Section 5A of the Act is necessary before taking action under Section 6 (1) of the Act. Per contra, the learned Addl. Advocate General submits that the land in question was acquired for the security and 4 safety of the country while keeping in mind the safety needs of the country's borders which is in the interest of public at large of the country. Learned counsel for the respondent State submits that upon the land in question buildings would be constructed over a very small portion of the acquired land and the remaining portion of the acquired land will be left free and, therefore, there will be no obstruction in the flow of rain-water to the various laks of the Udaipur city, as apprehended by the petitioners and that being the position, the petitioners cannot raise voice that they were not granted opportunity of hearing prior to issuing notification under Section 6 (1) of the Act. Further, it is submitted that objections submitted by the petitioners along with other persons were considered thoroughly and whatever the petitioners were having to say in their written objections, therefore, after considering the objections in their elaborate representation, the objections were dealt with and decided on 21.12.2005. Therefore, it cannot be said that the objections raised by the petitioners were not considered. In fact, the objections were considered, though personal hearing was not given; but, none of the objections raised by the petitioners was omitted from consideration before issuing notification issued under Section 6 (1) of the Act. The learned Addl. Advocate General submits that for the purpose of security of the nation, the objections received from 45 persons were decided while obtaining reply from the BSF; and, looking to the safety of the country, it was felt necessary to 5 acquire the land and while doing so, the objections raised by the petitioners were considered objectively and, thereafter, for justified reason, the State Government published notification under Section 6 (1) of the Act. Learned counsel for the State further invited my attention towards the petition filed by Gram Panchayat, Kavita in public interest being D.B. Civil Writ Petition No.6635/2005, in which, almost all these grounds raised in this writ petition with regard to non-compliance of Section 5A were taken up before the Division Bench and before the Division Bench it was submitted by the State that alternative pasture land in lieu of the pasture land diverted for the requirement of the BSF has been provided and upon that stand, the matter was dismissed vide judgment dated 06.09.2007 and, for the same acquisition proceedings, this writ petition has been filed by private persons raising voice that Section 5A of the Act was to be complied with prior to issuing notification under Section 6 (1) of the Act. It is, therefore, vehemently contended by learned counsel for the State that in respect of the same acquisition proceedings which is meant to provide land to the BSF, when the Division Bench has not chosen to interfere, then, on the ground of non- compliance of Section 5A of the Act, it is not proper to interfere in exercise of jurisdiction under Article 226 of the Constitution of India. Learned counsel for the respondent State submits that although personal hearing was not given to the petitioners 6 before issuing notification under Section 6 (1) of the Act but objections submitted by the petitioner along with other persons were considered by the competent authority thoroughly and whatever the petitioner was having to say was there in the objections, and, after considering those objections raised by the petitioners and other persons thoroughly and, so also, after getting reply from the BSF on each such objection, the matter was decided on 22.12.2005; and, thereafter, when it is found that there is no obstruction in the acquisition, notification under Section 6 was sent to the District Collector for getting approval of the State Government. The petitioners are only entitled to get the relief of compensation in accordance with law and not otherwise as alleged by them. The District Collector, Udaipur leased out the land situated in village Rathodon ka Guda and village Kavita measuring 3.3800 hectare, total 4 rakba, in favour of the BSF for a period of 99 years and possession of the land has already been handed over to the Deputy Commandant, B.S.F. Which is evident from the site-report dated 31.03.2006. In this view of the matter neither the petitioners are entitled to get any relief from this Court nor their objections are sustainable in the eye of law because, for the security purpose, the land was acquired and during the proceedings an opportunity of filing objections under Section 5A was given and, after considering the objections, the matter was finally decided objectively, therefore, in the peculiar facts and circumstances of this case, no interference is required in this matter as the land 7 has been acquired for the security of the nation. Learned counsel for the State invited my attention to the Constitutional Bench decision of the Supreme Court reported in AIR 1964 SC 1230 and AIR 2003 SC 3140. It is prayed that this writ petition deserves to be dismissed on the ground that no prejudice has been caused to the petitioners by not providing opportunity of personal hearing because the written objections raised by the petitioners were objectively considered; and, thereafter, decision was taken for issuing notification under Section 6 (1) of the Act and land in question was acquired and, now, the land is in possession of the BSF and construction has already been made, therefore, the writ petition deserves to be dismissed. Learned counsel for the BSF argued that for establishing reserve battalions in selected States at district headquarters, a decision was taken by the Government of India, therefore, the intention of establishing the reserve battalions is for the smooth functioning of the troops as they can easily be airlifted or sent by road to any area wherever need arises in emergency or in peace or to meet the natural calamities, therefore, the battalions were required to be located at such places where administrative and logistic support can easily be provided. In these facts and circumstances, decision was taken by the Ministry of Home Affairs on 20.12.2004 and, thereafter, request was made to the State Government to provide land at Udaipur. It is further submitted by learned counsel for the BSF that, in turn, the land was allotted and a proposal for obtaining 8 administrative approval and expenditure sanction for Rs.3,82,32,000/- for acquisition of 82.75 acres of land at Udaipur was submitted to the Ministry of Home Affairs for making payment to the State Government. The State Government agreed to give only 27.45 acres government land and 41.71 acres private land. Thus, total 69.16 acres of land has been provided to the BSF and the BSF has already made payment to the State Government on 31.03.2006 and possession of the land has already been taken; but, so far as private land is concerned, the process of acquiring the land was in process; meaning thereby, the State Government took up the acquisition proceedings for the security purpose of the country and allot the land to the BSF for establishment of reserve battalion. It is contended that now the Division Bench has also declined to interfere in the matter because some pasture land was also allotted, however, in lieu thereof, certain other pasture land was provided. Therefore, on mere technicalities, at this stage at the cost of security of the nation, no relief can be granted to the petitioners because admittedly the land has been handed over to the BSF for specific national purpose, therefore, in view of this, the writ petition deserves to be dismissed. I have considered the rival submissions. It is true that for acquiring land in public interest, the State Government has exclusive power and right to acquire the land. The only restriction is that at the time of acquisition proceedings, the State authorities shall take recourse to the 9 procedure laid down in the Act of 1894. A specific notification was issued for acquisition of the land for establishment of the BSF battalion on 01. 10.2005, in which, the agriculturists and land holders were granted opportunity to file objections. Admittedly, the petitioners along with other persons filed detailed objections vide Annex.-4 to the writ petition and all the objections were raised in writing before the Collector, Udaipur. As per the reply filed by the respondents, which is not controverted by the petitioners, the objections raised by the petitioners were considered objectively and, thereafter, notification under Section 6 of the Act was issued whereby the land was acquired. Admittedly, the possession of the government land was already handed over to the BSF and, thereafter, process for taking possession of the private land by acquisition was in progress and, in the meantime, this writ petition was filed. It is true that opportunity of hearing for deciding the objections so raised is required to be given under Section 5A which is not given to the petitioners; but, in this case, this Court is also required to see the compelling circumstances behind the intention of acquiring the land. Obviously, the intention for acquisition of the land is national security and for establishment of reserve battalion of the BSF, in respect of which, earlier a public interest litigation was filed before the Division Bench by the Gram Panchayat; but, upon making the submission before the Division Bench, that other land has been allotted in lieu of 10 the pasture land, the said PIL writ petition was dismissed by the Division Bench looking to the importance of the intention behind acquiring the land in question. Therefore, although in this case opportunity of personal hearing was not given but, at the same time, detailed objections raised by the petitioners and other persons were considered thoroughly and, before issuance of notification under Section 6 (1) of the Act, all the objections were dealt with and decision was taken that the land is to be acquired for establishment of reserve battalion of the BSF. It is true that the procedure laid down in the Act is to be followed; but, in this case, looking to the intention of the State for acquisition of the land even if personal hearing was not afforded to the petitioners, in my opinion, no prejudice has been caused to the petitioners which warrants any interference by this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. In the judgments cited by learned counsel for the petitioners, of course, it has been held that before issuance of the notification under Section 6 of the Act, provisions of sub- section (2) of Section 5A are required to be followed; but, in this case, too, provisions of Section 5A have been complied with and only lapse on the part of the respondents is pointed out that no opportunity of personal hearing was provided. As per the reply, the respondents have considered all the objections raised by the petitioners thoroughly and objectively. Therefore, in the interest of national security and, further, having considered the 11 fact that no prejudice whatsoever has been caused to the petitioners, in my opinion, in the facts and circumstances of the case, no occasion for justifiable interference is made out. The apex Court in the case of Pratibha Nema, reported in AIR 2003 SC 3140, has categorically held that if no prejudice has been demonstrated then it would be unjust and in appropriate to strike down the notification issued under Section 4 (1) on the basis of nebulous plea. Relevant para 35 to 38 of the said judgment read as follows : “35.We do not think that the ratio of the decision in M.P. Housing Board's case would come to the rescue of the appellants. Though the State Government could have discreetly avoided to use sophisticated industrial jargon, we do not think that the specified public purpose is so vague and indefinite that the public will not be in a position to understand its nature and purpose. That such terminology has gained currency is evident from the fact that the same expression was used in the Industrial Policy document. It may not be out of place to mention that in the recent times, the terminology such as Industrial Park, Information Technology Park is widely in circulation. Moreover, against the column 'authorised officer under S.4(2)' (close to the column 'public purpose'), the designation of Manager, District Industries Centre, Indore is specified. This is a pointer to the fact that the land was being acquired for industrial purpose. We are, therefore, of the view that in the instant case, the alleged vagueness is not of such a degree as to defy sense and understanding. 36.In Aflatoon v. Lt. Governor of Delhi (1975) 4 SCC page 285) the public purpose mentioned in the Notification under S. 4 was “planned development of Delhi.” The challenge on the ground of vagueness of the Notification was repelled on several grounds. The approach of the Court and the crucial consideration to be kept in view in dealing with this question was highlighted by Mathew, J. s[peaking for the 12 Constitution Bench in the following words : “. . . . . . .According to the Section (Section 4), therefore, it is only necessary to state in the Notification that the land is needed for a public purpose. The wording of S.5-A would make it further clear that all that is necessary to be specified in a notification under S.4 is that the land is needed for a public purpose. One reason for specification of the particular public purpose in the notification is to enable the person whose land is sought to be acquired to file objection under S.5-A. Unless a person is told about the specific purpose of the acquisition, it may not be possible for him to file a meaningful objection against the acquisition under S.5-A. . . . . . . . . We think that the question whether the purpose specified in a notification under S.4 is sufficient to enable an objection to be filed under S. 5-A would depend upon the facts and circumstances of each case.” Absence of [prejudice was highlighted in paragraph 10 thus : “That apart, the appellants did not contend before the High Court that as the particulars of the public purpose were not specified in the notification issued under S.4, they were prejudiced in that they could not effectively exercise their right under S. 5-A.” 37.On the facts of the case, it is not possible to draw the conclusion that the appellants have suffered any prejudice or handicap on account of the alleged vagueness in the description of public purpose. First of all, the appellants did not, in the pleadings before the High Court, point out as to how the alleged ambiguity of vagueness had resulted in prejudice in the sense that they could not effectively object to the acquisition. On the other hand, the appellants filed detailed objections before the Land Acquisition Officer covering each and very aspect. The objections and representations filed from time to time would unequivocally indicate that they were fully aware of the exact purpose of acquisition. Raising the bogey of vagueness in public purpose is evidently a result of afterthought. Moreover, by virtue of 13 what is stated in the notices issued by the Land Acquisition Officer under S. 5-A of the Act, no one could possibly have any doubt about the exact purpose of acquisition. True, it is not open to the Land Acquisition Officer to alter or expand the scope of public purpose as it is within the exclusive domain of the Government. But the Land Acquisition Officer by elaborating and making explicit what is really implicit in the Notification under S. 4(1), had only dispelled the possible doubts in this regard so that no one will be handicapped in filing objections. It is in that light the step taken by the Land Acquisition Officer has to be viewed. We cannot countenance the contention that in doing so, the Land Acquisition Officer out-stepped his jurisdiction. 38. When no prejudice has been demonstrated nor could be reasonably inferred, it would be unjust and inappropriate to strike down the Notification under S. 4(1) on the basis of a nebulous plea, in exercise of writ jurisdiction under Art. 226. Even assuming that there is some ambiguity in particularising the public purpose and the possibility of doubt cannot be ruled out, the constitutional Courts in exercise of jurisdiction under Art. 226 or 136 should not, as a matter of course, deal a lethal blow to the entire proceedings based on the theoretical or hypothetical grievance of the petitioner. It would be sound exercise of discretion to intervene when a real and substantial grievance is made out, the non-redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose, especially, in a matter like this where it is possible to take two views, is not something which affects the jurisdiction and it would, therefore, be proper to bear in mind the considerations of prejudice and injustice.” While following the aforesaid judgment, I am of the opinion that in this case also no prejudice has been demonstrated by the petitioners for not providing personal hearing prior to deciding the objections raised by the petitioner, and, moreover, in the earlier public interest litigation in respect 14 of the same acquisition proceedings, the Division Bench also did not choose to interfere for the significant cause that the land has been acquired for establishment of the BSF battalion, therefore, no reasonable ground is made out in the writ petition for interference under Article 226 of the Constitution of India. As a consequence of the aforesaid discussion, all these three writ petitions are dismissed. There shall, however, be no order as to costs. (Gopal Krishan Vyas) J. Ojha, a.