1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR Shyam Lal Bheel & Anr. V/s. The State of Raj. & Ors. S.B. CIVIL WRIT PETITION No.8179/04 S.B. Civil Writ Petition under Articles 226 & 227 of the Constitution of India Date of Judgment :: 20.08.2009 HON'BLE MR.JUSTICE R.S. CHAUHAN Reportable Mr. Imran Khan for the petitioner. Mr. Zakawat Ali, Dy. Govt. Counsel for the State. Aggrieved by the order dated 19.10.2004 whereby the Sub-Divisional Officer (“the SDO”, in short) had withdrawn the conversion order dated 25.11.2000, aggrieved by the subsequent reduction in the compensation amount for the acquired land, aggrieved by the final award dated 23.10.2004, the petitioners have sought the refuge of this Court. In a nutshell, the facts of the case are that the petitioner No.1, Shyam Lal Bheel and petitioner No.2, Kailash Meena, owned land in Khasra No.223, situated in village Tharol, Tehsil Aklera, District Jhalawar. Out of this land, 6 biswa of land belonging to petitioner No.1 was 2 converted, vide order dated 25.11.2000 from agricultural to residential usage by the SDO. But, in order to construct a canal through the area, vide Notification dated 17.10.2002, the State Government proposed to acquire the said land under the Land Acquisition Act. A notification under Section 4 of the Act was published in the newspaper dated 21.10.2002. According to the Notification, six biswa of land belonging to petitioner No.1 and six biswa of land belonging to petitioner No.2 were also included in the acquisition proceedings. On 01.04.2003, the SDO invited objections from the land owners of Khasra No.233 situated in village Tharol. Immediately, on 17.04.2003, the petitioners filed their objections before the learned SDO. Meanwhile, on 21.04.2003, the learned SDO passed an order converting the use of land, belonging to petitioner No.2 in Khasra No.223, from agriculture to residential purpose. Thus, as on 21.04.2003, a total of twelve biswas belonging to the petitioners, i.e., six biswas belonging to each of them was changed to “residential purpose”. After completion of the acquisition proceedings, on 18.08.2003, the learned SDO proposed an award in favour of the petitioners to the tune of Rs.23,77,643/-. Thereafter, he sent the same for approval by the Collector. Since the petitioners were not being granted compensation, on 11.02.2004 they sent a legal notice to the 3 Land Acquisition Officer. Immediately, on 20.02.2004, the Land Acquisition Officer informed the petitioners that their award has been sent to the Collector for his approval. He further informed the petitioners that since a mistake had occurred in the calculation of the compensation amount, the learned Acquisition Officer had requested the Collector not to approve the award. The mistake that was discovered was that the land belonging to petitioner No.1, Shyam Lal Meena was converted from agriculture to residential purpose on 25.11.2000, i.e., prior to the acquisition proceeding, but the land belonging to petitioner No.2, Shri Kailash Meena was converted on 21.04.2003 i.e., much after the acquisition proceedings have started. However, notwithstanding this fact, inadvertently, the land belonging to petitioner No.2 was treated as residential land, whereas it could not be so treated. For, the land was converted for residential purposes only after the acquisition proceeding had started. Aggrieved by this, the petitioners moved a writ petition before this Court, registered as S.B. Civil Writ Petition No.3446/04. Vide judgment dated 27.05.2004, this Court directed the Collector to afford an opportunity of hearing to the petitioners before approving or passing the final award. After affording an opportunity of hearing to the petitioners, vide award dated 19.07.2004, the learned Collector reduced the compensation 4 from Rs.23,77,097/- to Rs.13,78,773/-. The said amount was reduced on the ground that in fact only six biswa of land, that belonging to petitioner No.1, had been converted prior to the acquisition proceedings. Thus, only petitioner No.1 was entitled to have the compensation calculated on the basis that the land was used for residential purposes. However, petitioner No.2 was not so entitled. The said award was further sent for the approval by the Collector. However, surprisingly vide order dated 19.10.2004 without giving an opportunity of hearing to petitioner No.1, the learned SDO withdrew the conversion order passed in favour of petitioner No.1 on 25.11.2000. The learned SDO passed the said order ostensibly on the ground that petitioner No.1 had failed to raise the construction on the land as required by the conversion order. Moreover, the petitioner No.1 had gotten the land converted in order to receive an exorbitant rate of compensation. On the same day, i.e., 19.10.2004 without giving an opportunity of hearing, the SDO changed the compensation award and further reduced the compensation from Rs.13,78,773/- to merely Rs.48,510/- for each of the petitioners treating total twelve biswas of land as agricultural land. On 19.10.2004 itself, the learned SDO sent the said award for further approval to the Collector. Surprisingly, without affording an 5 opportunity of hearing to the petitioners, a final award was passed on 23.10.2004 as reduced by the learned SDO. Since the petitioners are aggrieved by the order dated 19.10.2004 whereby the conversion order 25.11.2000 has been withdrawn and aggrieved by the final award of the compensation dated 23.10.2004, they have knocked at the doors of this Court. Mr. Imran Khan, the learned counsel for the petitioners, has vehemently contended that the twin reasons given by the learned SDO for withdrawing the conversion order dated 25.11.2000 are legally unsustainable. For, the land was converted on 25.11.2000 i.e., two years prior to the commencing of the acquisition proceedings. According to the conversion order, petitioner No.1 was required to start his construction within a period of two years. However, before the said period of two years could be over, the notification under Section 4 was published on 21.10.2002. Once the land became the subject-matter of acquisition, obviously, the petitioner No.1 could not raise his construction. Therefore, the petitioner had a legal justification for not raising the construction. Despite the existence of a valid jurisdiction, conversion order has been withdrawn on the ground that the petitioner had failed to 6 raise the construction. Secondly, in the year 2000, i.e., two years prior to the commencement of the acquisition, the petitioner could not have imagined that the land would be acquired by the Government for the purpose of construction of canal after two years. Hence, the reasoning given by the learned SDO that petitioner No.1 had gotten his land converted in order to receive an exorbitant compensation is logically flawed. Thirdly, without giving an opportunity of hearing, the learned SDO reduced the compensation award from almost Rs.14 lacs to merely Rs.48,000/-. Therefore, the award as proposed by the learned SDO on 19.10.2004 is violative of the principles of natural justice. Even the final award, dated 23.10.2004, has been passed by the Collector behind the petitioners' back. Hence the said award is arbitrary, unfair and unjust. Thus, the impugned order and the award are violative of Articles 14, 21 and 300A of the Constitution of India. As far as petitioner No.2 is concerned, the learned counsel has conceded, and in the opinion of this Court rightly so, that the land belonging to petitioner No.2 was converted after the acquisition proceedings had commenced. Therefore, in the opinion of this Court the learned SDO was justified in treating the said land as the 7 agricultural in nature rather than residential in usage. However, the learned counsel has pleaded that while proposing the award on 19.10.2004 and while passing the final award on 23.10.2004, the learned SDO and the learned Collector should have given an opportunity of hearing to petitioner No.2. Therefore, even the proposed award dated 19.10.2004, and the final award dated 23.10.2004 qua petitioner No.2 are legally unsustainable. On the other hand, Mr. Zakawat Ali, the learned Dy. Govt. Counsel for the State, has strenuously argued that according to the conversion order 21.11.2000, petitioner No.1 was required to raise a construction on the converted land within a period of two years. However, he failed to do so. Moreover, even if it is conceded that petitioner still had one month left before the two years period comes to an end, even then, the petitioner could not have completed the construction within the short period of one month. Therefore, the learned SDO was justified in withdrawing the conversion order dated 25.11.2000. Secondly, while proposing the compensation award, and while reducing the compensation from almost Rs.14 lacs to Rs.48,000/-, there is no legal necessity to give an opportunity of hearing to petitioner Nos. 1 and 2. Giving an opportunity of hearing would have been a 8 mere formality as the action of learned SDO was legally performed. Thirdly, since the Collector had agreed with the reasoning given by the learned SDO in his proposed award dated 19.10.2004, there was no reason for the Collector to give an opportunity of hearing to the petitioners. The principles of natural justice are not to be followed as a ritual. Therefore, no practical purpose would have been served if an opportunity of hearing would have been given to the petitioners. Therefore, the learned counsel has supported the impugned order and the impugned award. In rejoinder, Mr. Imran Khan has pleaded that since the calculation of the award requires the appreciation of certain facts, it would be in the interest of justice to quash the order dated 19.10.2004 and to remand the case to the learned SDO for recalculating the compensation amount. Heard, the learned counsel for the parties and perused the impugned order and the award. The State has colossal powers. However, the greater the power, the more careful its usage. For, under the Constitution of India, the State is to act, not as a tyrant, but, as a benevolent and a generous welfare State. The State, undoubtedly, is the trustee of the people. Therefore, every 9 action of the State must be people-friendly, must be in the interest of people, and must be in accordance with rule of law. Any action which is contrary to the rule of law, or in violation of principles of natural justice, or in violation of constitutional mandate, such action and omission would be legally unsustainable. In fact, under the power of judicial review, the Court, in its writ jurisdiction, is duty-bound to quash and set aside such illegal action or omission. The reasoning given by the learned SDO in passing the impugned order 19.10.2004 is a series of excuses and cannot be termed as legal justification for revoking the conversion order dated 25.11.2000. Admittedly, according to the conversion order 25.11.2000, petitioner No.1 was granted two years to complete his construction. The said period was to be over on 24.11.2002. However, much before 24.11.2002, the State Government published the notification under Section 4 of the Land Acquisition Act. According to the acquisition laws, the land stands frozen on the date of notification under Section 4 of the Act. Thus, the land belonging to petitioner No.1 stood frozen on 21.10.2002. After the said date, the petitioner could not have raised any construction on the said land. In fact, if he were to do so, he would raise the construction at his own peril. 10 Thus, the raising of construction would be a futile exercise on his part. Therefore, petitioner No.1 was justified in not raising the construction. The learned SDO has taken a hyper-technical view of the situation, without considering the practical difficulties of petitioner No.1: after the publication of Notification under the Land Acquisition Act, petitioner No.1 was disabled from raising the construction. Of course, Mr. Zakawat Ali has argued that the petitioner No.1 could not have possibly raised the construction within a short span of one month. However, the said argument is in the realm of conjectures and surmises. Therefore, the said argument cannot be accepted. Even the second reason given by the learned SDO is baseless. According to the learned SDO, the petitioner No.1 had gotten the said land converted so that he could fetch a rich harvest in the shape of a high compensation. While giving the finding, the learned SDO has not discussed any evidence worth its salt for reaching the conclusion. In fact, it is difficult to accept that an ordinary person would know about the acquisition of land two years down the line. Therefore, even the second reasoning given by the learned SDO is clearly unacceptable. Thus, the order dated 19.10.2004 is legally unjustified. 11 It is, indeed, trite to state that the principles of natural justice are universally applicable. The principle of audi aulterm partem requires that before any order can be passed against a person, an opportunity of hearing should be given to him/her. The right of a hearing is not an illusory right, but is a substantive one. The right of hearing is not a mere formality to be performed by concerned authority. Under the principles of natural justice not only a party has the right to marshal out the evidence and to plead his case, but also has a legitimate expectation that the concerned authority would exercise its power in light of the law and in the light of the constitutional mandate. In the present case, both the petitioners had legitimate expectation that prior to reducing the compensation, they would be heard by the learned SDO. However, no such opportunity of hearing was given to them. Therefore, the proposed award dated 19.10.2004, reducing the compensation amount, is arbitrary, unfair, and unjust. It is not only violative of the principles of natural justice, but most importantly is in violation of concept of equality enshrined under Section 14 of the Constitution of India. Hence, the proposed award dated 19.10.2004 made by the learned SDO is unsustainable. 12 The senior bureaucrats like the Collector are expected to be aware of the basic requirement of administrative law. The Collector should have realised that compensation award cannot be reduced without affording an opportunity of hearing to the petitioners. Therefore, the final award dated 23.10.2004 is also in violation of principles of natural justice. For the reasons stated above, this Court quashes and sets aside the order 19.10.2004 whereby the learned SDO had withdrawn the order dated 25.11.2000. The proposed award dated 19.102.004 made by learned SDO with regard to the compensation amount, as well as the final award dated 23.10.2004 made by the learned Collector are also quashed and set aside. Since the order 19.10.2004 has been quashed and set aside, the entire case is remanded back to the learned SDO for recalculating the compensation amount taking the conversion order 25.11.2000 to be valid. The learned SDO is further directed to give ample opportunity of hearing to both the petitioners before making and sending the proposed award to the learned Collector for his approval. The learned Collector is also directed to give an opportunity of hearing to the petitioners before finally approving the award. Since the 13 matter is pending for the last seven years, the learned SDO is expected to pass the proposed award within a period of three months from the date of receipt of certified copy of this judgment. And the learned Collector is directed to pass the final award within a period of three months from the date of receipt of the proposed award sent by the learned SDO for his approval. For the reasons stated above, the writ petition is, hereby, allowed. There shall be no order as to costs. [R.S.CHAUHAN]J A.Asopa/