1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T (1) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.401/2003 The Union of India Vs. Trustees of Major Maharaj Harisingh Benefit of Defence Services Personnel Charitable Trust & Ors. (2) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.673/2004 The State of Rajasthan & Anr. Vs. Trustees of Major Maharaj Harisingh Benefit of Defence Services Personnel Charitable Trust & Anr. D.B.CIVIL SPECIAL APPEALS UNDER SECTION 18 OF THE RAJASTHAN HIGH COURT ORDINANCES, 1949 AGAINST THE JUDGMENT DATED 25.2.2003 PASSED BY HON'BLE MR.JUSTICE RAJESH BALIA IN S.B.CIVIL WRIT PETITION NO.2725/1993. DATE OF JUDGMENT: 25th, APRIL,2005 HON'BLE MR.JUSTICE N.N.MATHUR HON'BLE MR.JUSTICE MANAK MOHTA Mr.A.Sharan,Addl. Solicitor General ) Mr.Vineet Mathur, Asistant Solicitor General) for Union of India Mr.N.M.Lodha, Addl.Advocate General, for the State Mr.L.R.Mehta ) Mr.R.K.Purohit) for the respondents REPORTABLE/- BY THE COURT : (PER HON'BLE MATHUR J.) 1. These two special appeals separately preferred, one by Union of India and another by the State of Rajasthan are 2 directed against the judgment of the learned Single Judge setting aside the order Annexure-12 dated 7th May, 1993 and the Gazette Notification Annexure-13 of the same date issued by the competent authority (Collector, Jodhpur) under Section 7 of the Requisitioning & Acquisition of Immovable Properties Act, 1952 (hereinafter referred to as the Act of 1952) for the acquisition of requisitioned property for defence purposes. 2. The salient facts in short as emerged from the pleadings are as follows:- The former ruler of the State of Jodhpur Maharaja Shri Gaj Singh created a Trust of a land in South of Umaid Bhawan Palace ad measuring about 1790000 Sq. Yards in the name of the writ petitioner respondent Major Maharaja Hari Singh Benefit of Defence Services Personnel Charitable Trust (hereinafter referred to as the Trust). REQUISITION UNDER DEFENCE OF INDIA ACT: 3. The Defence Ministry required about 645 Acres of land for the purpose of developing the Army Cantonment consisting of Khasra No.426, 296, 297, 632, 632/1 & 632/4. It appears that in this connection the Army authorities contacted the Trust as well 3 as the Collector, Jodhpur which is evident from the some of the correspondences on record. The respondent Trust vide letter dated 9th January, 1973 conveyed its willingness to dispose of the subject land for defence purposes, which reads as follows:- “D.O.NO.PS/85/73 M.JASWANT SINGH UMAID BHAWAN PRIVATE SECRETARY JODHPUR JAN:9, 1973 Thank you for your D.O. No.RJ/321/ACQ/57/E4A of 29th Dec. In this connection I have had a meeting with Maj Gen. RF Khambatta PVSM. I would like to clarify a few things. Firstly, there is some variance between the map supplied by you and the position of land held by the Trust, on ground. I am, therefore, enclosing a map of the Trust property, which has been marked in black. So far as the “No Objection” certificate from the Trust in concerned, as personally explained to Gen. Khambatta, the Trustees are shortly going to meet and pass a resolution to that effect. In this respect also, I think, there is some misunderstanding. If any impression has been given by the Collector that “litigation is under way” as mentioned in your letter, the impression is unfounded. The Trust does not intend filing any litigation. Further, the title of the land in question is not disputed at all. Some queries have been raised about what the type of land is. These are being dealt with routinely. Other than this, there is no dispute of litigation. As mentioned earlier, the Trustees have, in principle, already accepted that the land be disposed to the Defence authorities subject. (a) To any discrepancies of the measurements etc. being mutually sorted out; and 4 (b) if it is accepted that the land be acquired at the urban rates applicable for that area. There being no doubt that the land in question is urban in character. Further clarification, if necessary can be furnished. I am taking liberty to endorsing a copy of this letter to HQ 12 Infantry Div. For their information. On receipt of your reply, necessary action will immediately be taken to provide you as also the Collector with “No Objection” certificate. Sd/- (JASWANT SINGH)” 4. There is another communication of 12th January, 1973 issuing “No Objection” certificate, which reads as follows:- “K JASWANT SINGH No P/S85/73/17 SECRETARY UMAIDBHAWAN PALACE MAJOR MAHARAJ HARISINGH JODHPUR RAJASTHAN BENEFIT OF DEFENCE SERVICES January, 12-1973 PERSONNAL CHARITABLE TRUST HQ 12 Infantry Div(A) C/S 56 APO SALE OF LAND ATTACHED TO UMAID BHAWAN JODHPUR BELONGING TO MAJOR MAHARAJ HARISINGH UMAID BHAWAN BENEFIT OF DEFENCE SERVICES PERSONNEL CHARITABLE TRUST. Dear Sir, With reference to the verbal discussion that we have been having on the subject, I am enclosing the necessary “No objection certificate in respect of our trust land. May I highlight here that the “No objection” certificate is subject to (a) Discrepancies of the actual measurement of the land being mutually settled; and (b) The rates payable as compensation to the Trust 5 are at the applicable urban rates. Please acknowledge receipt of the certificate and advice about further course of action to be taken by us. Yours faithfully Sd/- JASWANT SINGH SECRETARY” 5. The Central Government proceeded for requisition of the land in accordance with Section 23 of the Defence of India Act, 1971 (hereinafter referred to as the Act of 1971). Inquiries were made to satisfy, if the land or part thereof was not being used exclusively for religious purpose by the public. The Tehsildar Tehsildar made necessary inquiries and issued a certificate in February, 1973. The defence authorities and the trustees with the assistance of Collector, Jodhpur negotiated for the price of the land. It appears from the application filed by the Trust for the award of compensation that as a result of mutual negotiations the sale price was finalized for Rs.2.05 per Sq. Yard. As the defence was in urgent need of the land, in accordance with the provisions of Section 23(1) of the Defence of India Act, 1971 the President sanctioned requisitioning of 465 Acres of private land in Village Digari and Jodhpur bearing Khasra No.s 426, 296, 297, 632, 632/1 and 632/4. The sanction was also accorded to the acquisition of the aforesaid land at approximate cost of Rs.6.45 Lakhs. It was made clear that requisition 6 compensation will be made till acquisition is completed. With the said notification the land vested in Army on 6.5.76 and the possession was taken over by the Union of India on 1st July, 1976. Thereafter, a well planned cantonment has come up on the requisitioned land. Presently the new Corps Head Quarter Unit etc. are located on the land. DIVERSION – STATE OR PRIVATE PROPERTY.(1975-89):- 6. At this stage it is relevant to refer the proceedings under the State Act and the litigation pertaining to subject land which delayed the award of compensation. The Collector, Jodhpur issued a notice dated 5.4.75 under the Rajasthan Land Reforms and Acquisition of Land Owners Estate Act, 1963(hereinafter referred to as the Act of 1964) requiring Maharaja Shri Gaj Sing to hand over possession of the land mentioned in the schedule annexed to the said notice including Khasra No.426 of Umaid Bhawan Palace. The notice was challenged by Maharaja Gaj Singh by filing a writ petition in the High Court. By an interim order dated 7.5.75 the State was restrained from taking any action under the Act of 1964. The stay was modified by order dated 30.9.1975. The Collector, Jodhpur issued a fresh notice dated 17.10.75 under the Act of 1964 requiring Maharaja Gaj Singh to hand over possession of the properties mentioned in the 7 notice dated 5.4.75, which were not covered by the modified stay order dated 30th September, 1975. Thus, a second writ petition was filed by Maharaja Gaj Singh challenging the notice dated 17.10.75. The Trust also filed a writ petition challenging the notice of the Collector dated 5.4.75 and 17.10.75. The Collector, Jodhpur took possession over the land declaring that the land measuring 296.20 Acre forming part of Khasra No.426 had vested in the State under the provisions of the Act of 1964. The Collector also claimed that the land deemed to have been acquired by the State w.e.f. 1.9.64 under the Act of 1964. He also recommended for issuing of no objection certificate for transfer of the land measuring 645 Acres (including 296.20 Acres of Khasra No.426) to the Ministry of Defence. The Sub Divisional Officer, Jodhpur resumed possession of the land measuring 296.20 Acres of Khasra No.426 on 8.12.75 by beat of drum and by pasting a notice in pursuance of the above direction of the Collector. On 1.7.76 the subject land was transferred to the defence authorities and the possession was handed over. A contempt petition was filed complaining that irrespective of interim order, Collector transferred subject land to Defence by Notification dated 6th May, 1976. On a statement made by the learned Government Advocate to the effect that the Trust may file a claim for compensation in respect to the subject land in accordance with law, the contempt notice was discharged.. 8 Accordingly compensation petition was filed under Section 24 of the Act of 1971 in the year 1978. The Trust claimed compensation as follows:- “(a) Value of the land admeasuring 14,33,608 Sq. Yards @ Rs 6/- per Sq. Yard amounting to Rs.86,01,648/- (b) Interest on the amount of compensation @ 6% from the date of possession till the date of award may kindly be awarded to the applicant (c) Future interest on the amount of compensation from the date of award till the date of realization of the compensation may also be awarded to the applicant.” However, the claim petition could not proceed because of the pendency of the writ petition. The controversy was concluded by the decision of the Supreme Court rendered in Adhunik Grah Nirman Sahakari Samiti Ltd. etc. vs. State of Raj. & Anr. reported in AIR 1989 SC page 867. It was held therein that the subject land was not liable to acquisition under the Act of 1964 as it was excluded from the definition of land and the property falls within the ambit of the property excluded from the definition of land. The said finding was based on appreciation of material on record that the subject land was within the boundaries of Umaid Bhawan Palace, which is the private property in accordance with the inventory prepared and approved by the Government of India. It would be convenient to extract the finding of the Apex Court as follows:- 9 “In view of these circumstances therefore so far as the land in dispute i.e. Khasra Nos. 421 and 426 is concerned the admission made by the State and which was also clear from various documents which have been considered by the High Court in their judgments in these petitions clearly show that these lands were within the boundaries of the Umaid Bhawan Palace which is the private property in accordance with the inventory prepared and approved by Government of India and therefore which will not fall within the ambit of the definition of the 'land' as defined in Section 2F and thus will not fall within the ambit of the 'estate' which could vest under the provisions of this Section.” NEGOTIATION FOR PAYMENT OF COMPENSATION:- The trustees resumed negotiation with the Central Government to arrive at the agreed figure of compensation for requisitioning of the land for the period 1976-81, 1981-86 and 1986-91. The proceedings of the meeting in the office of the Assistant Defence Estate Officer, Jodhpur on 24.8.90 regarding negotiating the quantum of recurring compensation payable to the persons interested in respect of requisitioned land at Jodhpur has been placed on record as Annexure-6. As the possession was taken over by the defence in July, 1976 and as per the Act of 1952 the recurring compensation was required to be redetermined after every five years. Thus, the Collector offered following rate of recurring compensation vide Annexure-7 dated 21.6.97:- “A. From 1976 to 1981- @ 50 pisa per sq. yard 10 per year. B. From 1981 to 1986- @ 75 pisa per sq. yard per year. C. From 1986 to 1991- @ 1.50 pisa per sq. yard per year.” The amount of Rs.1,97,12,110/- was paid to the Trust. The receipt dated 22nd January, 1992 has been placed on record as Annexure-9 which reads as follows:- “Received with thanks a sum of rupees 1,97,12,110/- (Rupees One Crore ninety Seven Lack Twelve thousand one hundred and Ten only) through P.D. Accounts with the State Bank of India, Kutchari Branch Jodhpur vide Cheque No.A/5 793620 dated 2.1.1992 from the Collector, Jodhpur towards recurring compensation in respect of this Trust's land measuring 296.20 acres.” ACQUISITION OF REQUISITIONED LAND UNDER ACT OF 1952:- 7. It is further relevant to state that by an Amendment Act No.44 of 1977 on expiry of the Defence of India Act,1971 on 26th September, 1977 the properties which were requisitioned under Section 23 of the Act, provided that the said properties be deemed to have been requisitioned under the provisions of Requisitioning and Acquisition of Immovable Properties Act, 1952. In view of the above the provisions of Requisitioning & 11 Acquisition of Immovable Properties Act, 1952 were made applicable to the subject property. Thus, the proceedings were taken to acquire subject requisitioned land under the Act of 1952. 8. The Collector, Jodhpur being the competent authority under the Act of 1952 issued a notice dated 26.2.93 to the respondent Trust under Section 7(1) to show cause as to why the land in question be not acquired for public purposes. In reply to the notice the respondent inter alia raised objection to the effect that the notice does not disclose the public purpose for which the property is sought to be acquired. The authority of the Collector to issue notice was also questioned. It was pleaded that the State could not be treated as a party interested to join the issue of acquisition and lastly claimed personal hearing. A prayer was made to immediately withdraw or cancel the acquisition notice. The Collector considering the objections held that the land under acquisition was requisitioned under Section 23 of the Act of 1971. The possession of the land vested in the Central Government w.e.f. 1st July, 1976 in view of the provisions of Section 23 of the Act of 1971. During the period of requisition entire cantonment has been developed by raising number of constructions on the subject property at the expenses of the Central Government. The public purpose was known to the 12 objector even at the initial stage. The objector was in full knowledge of the public purpose for which the land was sought to be acquired. The objector has also received recurring compensation of Rs.1,97,12,110/-. There was some litigation with respect to the subject Trust properties in which the Ministry of Defence was also a party and the same culminated with the decision of the Supreme Court. In view of the finding, the competent authority (Collector, Jodhpur) rejected the objections and issued an acquisition notice dated 7.5.93 in Form J. CHALLENGE TO ACQUISITION PROCEEDINGS:- 9. The respondent Trust challenged the notice dated 26.2.93 Annexure-10 and the acquisition notice dated 7.5.93 by way of a writ petition under Article 226 of the Constitution of India inter alia on the ground that it has been issued in contravention of the provisions of the Act of 1952 inasmuch as no opportunity of personal hearing was afforded which is mandatory under the provisions of Section 7(1) of the Act of 1952. The learned Single Judge held that under Sub-section (1) of Section 7 of the Act of 1952 mere submission of reply to show cause notice and its consideration without giving opportunity of hearing to parties interested is not envisaged. The Court further held that if the requirement of the statutes were to be fulfilled merely on 13 consideration of objections as may have been received by the competent authority, in response to show cause notice and opportunity of being heard in person is not considered necessary, the expression and “after giving the parties opportunity of being heard” in proviso to Section 7(1) shall be rendered otiose. Thus, the learned Single Judge having found the order of the competent authority Annexure-12 dated 7.5.93 passed in gross violation of the principles of natural justice inasmuch as that no personal hearing was given to the respondent Trust allowed the writ petition and quashed the Annexure-12 dated 7.5.93. CONTENTIONS:- 10. Assailing the judgment of the learned Single Judge, it is contended by Mr.A.Sharan learned Addl. Solicitor General that a fair reading of Sub-section (1) of Section 7 of the Act of 1952 shows that it does not necessarily postulate of personal hearing. There is also no rule of natural justice that at every stage a person is entitled to personal hearing. The learned counsel referring to the theory of unnecessary formality argued that the learned Single Judge has not taken into account the indisputable fact which leads to the only conclusion that the subject requisitioned property has to be acquired. On the other hand 14 Mr.L.R.Mehta learned counsel appearing for the Trust has supported the judgment of the learned Single Judge. 11. In order to appreciate what was held by the learned Single Judge and to test the correctness of the rival submissions advanced before us, it is necessary to refer to the relevant statutory provisions. D.I.R. ACT, 1971:- 12. His Excellency the President of India declared proclamation under Clause (1) of Article 352 of the Constitution considering that a grave emergency exists whereby the security of India is threatened by external aggression and in order to provide special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected therewith enacted the Act as a special measure in the name of Defence of India Act, 1971. Chapter V provides for requisitioning and acquisition of immovable properties. Section 23 & 24 of the Act reads as follows:- “23.Requisitioning of immovable property.-(1) Notwithstanding anything contained in any other law for the time being in force, if in the opinion of the Central Government or the State Government it is necessary or expedient so to do for securing the defence of India, civil defence, public safety, maintenance of public order or efficient conduct of 15 military operations, or for maintaining supplies and services essential to the life of the community, that Government may be order in writing requisition any immovable property and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning: Provided that no property or part thereof which is exclusively used by the public for religious worship shall be requisitioned . (2) The requisition shall be effected by an order in writing addressed to the person deemed by the Central Government or the State Government, as the case may be, to be the owner or person in possession of the property, and such order shall be served in the prescribed manner on the person to whom it is addressed. (3) Whenever any property is requisitioned under sub-section (1), the period of such requisition shall not extend beyond the period for which such property is required for any of the purposes mentioned in that sub-section. **** 24. Payment of compensation.- Whenever in pursuance of section 23, the Central Government or the State Government, as the case may be, requisitions any immovable property, there shall be paid to the persons interested compensation the amount of which shall be determined by taking into consideration the following, namely:- (i) the rent payable in respect of the property or if no rent is payable, the rent payable in respect of similar property in the locality; (ii) if in consequence of the requisition of the property the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; (iii) such sum or sums, if any, as may be found 16 necessary to compensate the person interested for damage caused to the property on entry after requisition or during the period of requisition, other than normal wear and tear: Provided that where any person interested being aggrieved by the amount of compensation so determined makes an application within the prescribed time to the Central Government or the State Government, as the case may be, for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the Central Government or the State Government as the case may be, may determine: Provided further that where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, it shall be referred to an arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, for determination, and shall be determined in accordance with the decision of such arbitrator.” 13. Section 23 empowers requisitioning of any immovable property which in the opinion of the Central Government is necessary for securing the Defence of India, civil defence, public safety, maintenance of public order of efficient conduct of military operations or for maintaining supply and services essential to the life of the common man. The property exclusively used by the public for religious worship has been excluded from requisition under proviso to sub-section (1). Section 24 provides for the payment of compensation. The Defence of India Act expired on 26th September, 1977 i.e. six 17 months after the date of revocation of proclamation of emergency issued on 3rd December, 1971. The properties requisitioned under the Act of 1971 continues to vest in the Central Government by virtue of Amendment Act of 1977. The Ministry of Defence considered it necessary to keep all the properties under requisitioning even after 26th September, 1977 for purpose connected with the defence of the country. As such Requisitioning & Acquisition of Immovable Properties Amendment Ordinance, 1977 was promulgated on 23rd September, 1977. The Ordinance amended the Requisitioning & Acquisition of Immovable Properties Act, 1952 to provide that such properties shall be deemed to have been requisitioned under the Act of 1952. Thus, after the decision of the Supreme Court in the year 1989, the proceedings for compensation resumed. At that stage it was felt that a formal proceeding is required to be initiated for the acquisition of the land requisitioned by the Central Government. ACT OF 1952:- 14. The Requisitioning & Acquisition of Immovable Properties Act, 1952 was enacted to provide for the requisitioning and acquisition of immovable property for the purpose of the Union. Section 3 provides for the requisitioning of immovable 18 properties. In the instant case no proceedings was required to be initiated under Section 3 of the Act of 1952. Section 7 provides for the acquisition of the requisitioned properties. Section 7 reads as follows:- “7.Power to acquire requisitioned property.-(1) Where any property is subject to requisition, the Central Government may, if it is of opinion that it is necessary to acquire the property for a public purpose, at any time acquire such property by publishing in the Official Gazette a notice to the effect that the Central Government has decided to acquire the property in pursuance of this section: Provided that before issuing such notice, the Central Government shall call upon the owner of, or any other person who, in the opinion of the Central Government, may be interested in such property to show cause why the property should not be acquired, and after considering the cause, if any, shown by any person interested in the property and after giving the parties an opportunity of being heard, the Central Government may pass such orders as it deems fit. (2) Where a notice as aforesaid is published in the Official Gazette, the requisitioned property shall, on