Case: Laxman Lal(Dead)Through Lrs.  Vs. State Of Rajasthan

On 19.03.1987, a notification was issued under Section 6 of the 1953 Act. By that notification the state government also invoked its powers conferred under Section 17(1) read with Section 17(4) of the 1953 Act and dispensed with the provisions of Section 5-A.  5. An important event occurred between 01.05.1980 and 19.03.1987. The State Legislature following the Ordinance promulgated by the Governor amended the 1953 Act by the 1981 Amendment Act. Effective from 27.06.1981, by the 1981 Amendment Act, Section 6 of 1953 Act was amended and the following proviso in Section 6 was inserted:Provided that no declaration in respect of any particular land covered by a notice under section 4, sub-section 5, given after the commencement of the Rajasthan Land Acquisition (Amendment and Validation) Act, 1981, shall be made after the expiry of three years from the date of giving of such notice:6. Section 5 of the 1981 Amendment Act provides for validation of certain acquisitions. Sub-sections 1(b) and (2) thereof, which are relevant for the present controversy, read as follows :S. 5. Validation of certain acquisitions.—  (1) (a) xxx xxx xxx  (b) any acquisition in pursuance of any notice given under sub-section (5) of section 4 of the principal Act before the commencement of this Act may be made after such commencement and no such acquisition and no action taken or thing done (including any order made, agreement entered into or notice given), whether before or after such commencement, in connection with such acquisition shall be deemed to be invalid merely on the grounds referred to in clause (a) or any of them.  (2) Notwithstanding anything contained in clause (b) of sub-section (1) no declaration under section 6 of the principal Act in respect of any land for the acquisition of which notice under sub-section (5) of section 4 of the principal Act has been given before the commencement of this Act, shall be made after the expiry of two yeas from the commencement of the said Act7. The above acquisition was challenged in three writ petitions before the High Court. One of these writ petitions was filed by Laxman Lal and Manohar Lal. Both these petitioners are dead and now represented by their legal representatives who are appellants herein. The challenge to the acquisition was laid on diverse grounds but none of the grounds persuaded the Single Judge and all the three writ petitions were dismissed by a common order dated 11.05.1999.  8. The order of the Single Judge was challenged in intra-court appeal by the writ petitioners. Before the Division Bench, the following three points were raised in support of the appeal:-  I) Proceedings could not be continued because notification under Section 6 of the Act was issued after a lapse of about 7 years. This was in view of the provisions of sub-section (2) of Section 5 of the Rajasthan Land Acquisition (Amendment and Validation) Act, 1981. The said provisions provided a limitation of two years from the date of commencement of the Validation Act for issuing the declaration under Section 6. Since the declaration was issued much beyond this period of limitation the same was liable to be quashed. It was further contended that Section 17(4) notification could not be used to validate the proceedings.  II) Notice under Section 17(4) was void ab initio because the respondents failed to tender payment of 80 percent of compensation as envisaged under sub-section (3)(a) of Section 17 of the Land Acquisition Act.  III) The action of the respondents is highly arbitrary. By issuing a notification under Section 4 of the Act in the year 1980 the appellants were being pegged down for purposes of payment of compensation although effectively the acquisition was being made in the year 1987.  9. Dealing with the first point, the Division Bench held as under:  It will be seen from the above that a declaration under Section 6 in respect of the land can be made at any time after the publication of the notification under Section 4(1). In view of this specific statutory provision which is admittedly applicable, it cannot be said that a declaration under Section 6 could not have been issued after a lapse of 7 years or more. Learned counsel for the appellants fairly conceded that Section 17 is a Code in itself. It contains complete procedure for acquisition made under the said provision. Section 17 is a provision to be resorted to in cases of urgency. Notification under Section 4 of the Act already stood issued with respect to the land in question as far back as the year 1980. The Government felt the urgency for the acquisition and, therefore, Section 17(4) notification, read with Section 6, was issued on 19.03.1987. We find no illegality in the procedure following in the facts of the case.  10. It is not necessary to deal with the second ground urged before the Division Bench as it has not been pressed before us. As regards the third ground, the Division Bench held as under:Lastly, the learned counsel raised an argument suggesting arbitrariness on the part of the respondents. As already noted, Section 17 permits the Government to invoke its provisions at any time, therefore, there is no statutory bar so far as the action is concerned. If the action of the respondents results in some hardship to the landowners normally, the provision regarding payment of interest takes care of the hardship. The power of compulsory acquisition of land is in the nature of a power of eminent domain which the State is entitled to exercise keeping in view the larger public interest as against individual interest.

Court's reasoning:
23. In light of the above legal position which is equally applicable to Section 17(1) and (4) of the 1953 Act, we may turn to the fact situation of the present matter. Section 4(5) notice under the 1953 Act was issued by the state government in 1980. For almost seven years, no steps were taken in taking the acquisition proceedings pursuant to the Section 4(5) notice to the logical conclusion. Even inquiry under Section 5-A was not commenced, much less completed. Abruptly on 19.03.1987, without following the procedure contemplated in Section 5-A, the declaration under Section 6 was made and in that notification the state government stated that it has invoked its power of urgency under Section 17(1) and dispensed with inquiry under Section 5-A in exercise of its power under Section 17(4). Can it be said that an inquiry under Section 5-A could not have been completed in all these years? We think that it could have been done easily and conveniently in few months leave aside few years. There were not large number of owners or persons interested in respect of the subject land. Section 5-A, which gives a very limited right to an owner/person interested, is not an empty formality. The substantial right under Section 5-A is the only right given to an owner/person interested to object to the acquisition proceedings. Such right ought not to be taken away by the State Government sans real urgency. The strong arm of the government is not meant to be used nor it should be used against a citizen in appropriating the property against his consent without giving him right to file objections as incorporated under Section 5-A on any ostensible ground. The dispensation of enquiry under Section 17(4) has to be founded on considerations germane to the purpose and not in a routine manner. Unless the circumstances warrant immediate possession, there cannot be any justification in dispensing with an enquiry under Section 5-A. As has been stated by this Court in Anand Singh4, elimination of enquiry under Section 5-A must only be in deserving and in the cases of real urgency. Being an exceptional power, the government must be circumspect in exercising power of urgency28. In this case, as noted above, the preliminary notification under Section 4 was issued on 01.5.1980. After lapse of about 7 years on 19.03.1987, one fine morning the state government issued declaration under Section 6 without complying with the mandate of Section 5-A and in that declaration it was stated that it has invoked its powers conferred under Section 17(1) read with Section 17 (4) of the 1953 Act and dispensed with the provisions of Section 5-A. Had the state government intended to hold and complete the inquiry under Section 5-A, it could have been done in few months. However, no steps for commencement of the inquiry under Section 5-A were even taken by the state government. We find that a very valuable right conferred on the land owner/person interested under Section 5-A has been taken away without any justification. It is so because the bus stand construction would have taken some time. The exercise of the power by the state government under section 17(1) read with Section 17(4) of the 1953 Act and dispensation of inquiry under Section 5-A can not be legally sustained and has to be declared as such29. Now, coming to the first question, it will be seen that preliminary notification under Section 4 was issued on 01.05.1980. At the time of issuance of the preliminary notification, the 1953 Act did not prescribe any time limit for issuance of declaration under Section 6. However, with effect from 27.06.1981 by the 1981 Amendment Act, Section 6 was amended and a proviso was inserted that no declaration in respect of any land covered by notice under Section 4, sub-section (5), given after the commencement of the 1981 Amendment Act shall be made after the expiry of three years from the date of giving of such notice. This proviso is obviously applicable to the acquisition proceedings initiated after coming into force of the 1981 Amendment Act and has no application to the present fact situation. As regards the acquisition proceedings which had already commenced by issuance of preliminary notification before coming into force of the 1981 Amendment Act, Section 5(1)(b) of the 1981 Amendment Act, inter alia, provides that acquisition pursuant to such preliminary notification may be completed after commencement of the 1981 Amendment Act and no such acquisition and no action taken or thing done including any order made, agreement entered into or notice given, whether before or after such commencement, in connection with such acquisition shall be deemed to be invalid merely on the grounds referred to in clause (a) or any one of them. Sub-section (2) of Section 5 of the 1981 Amendment Act, however, provides that notwithstanding anything contained in clause (b) of sub-section (1), no declaration under Section 6 of the 1953 Act in respect of any land for the acquisition of which notice under sub-section (5) of Section 4 has been given before the commencement of the 1981 Amendment Act shall be made after the expiry of two years from the commencement of the 1981 Amendment Act. Sub-section (2) of Section 5 of the 1981 Amendment Act begins with non obstante clause. Section 5(2) of the 1981 Amendment Act thus mandates that no declaration under Section 6 in respect of the notice issued under Section 4(5) before the commencement of the 1981 Amendment Act shall be made after expiry of two years from the commencement of the said Act. The provision leaves no manner of doubt that two years time prescribed for making declaration under Section 6 in respect of the notice issued under Section 4(5) prior to the commencement of the 1981 Amendment Act is mandatory and permits no departure. This is clear from the words no declaration and shall be made used in Section 5(2). The intention of the legislature admits of no ambiguity and it is clear that in respect of the notice issued under Section 4(5) before the commencement of the 1981 Amendment Act, it is obligatory on the state government to make declaration on or before the expiry of two years from the commencement of the 1981 Amendment Act. The provision is imperative in nature and has to be followed as it lays down the maximum time limit within which the declaration under Section 6 of the 1953 Act can be made in respect of the notice under Section 4(5) issued before the commencement of the 1981 Amendment Act32. Having regard to clear and unambiguous mandate of Section 5(2) of the 1981 Amendment Act that no declaration under Section 6 of the 1953 Act in respect of any land for the acquisition of which notice under Section 4(5) has been given before the commencement of the 1981 Amendment Act shall be made after the expiry of two years from the commencement of the 1981 Amendment Act, it has to be held and we hold that preliminary notification dated 01.05.1980, which was followed by notice under Section 4(5) before the commencement of the 1981 Amendment Act, has lapsed and does not survive since declaration under Section 6 has been made much beyond the time limit prescribed in law.