TMI Blog1976 (10) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... d notification were needed or likely to be needed for public purpose, that is, for General Engineering Works, Bharatpur. The notification further stated that under Section 4 (1) of the Act No. XXIV of 1953 the Government was pleased to authorise the Tehsildar, Bharatpur, to discharge the functions envisaged by Section 4 (1) and submit a report under Section 4 (4) of the Act No. XXIV of 1953. The respondent No. 3, Land Acquisition Officer (Sub-divisional Officer), Bharatpur, issued a notice-Annex. 1, under Section 4 (5) (1) of the Act No. XXIV of 1953 on April 30, 1973. The appellant filed objections-Annex. 2, dated May 22, 1973. The respondent No. 3 fixed July 20, 1973 for recording the evidence, but owing to general strike of the clerical staff, the case was adjourned to August 31, 1973. On this date the petitioner-appellant filed an application for determining certain preliminary objections challenging the jurisdiction of the respondent No. 3 to make the enquiry. The Land Acquisition Officer, (Sub-divisional Officer), Bharatpur, refused to consider the objections piecemeal. Instead he decided to dispose of the preliminary objections along with others at the time of submitting a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 81;रतीत appear in contradistinction to the word consider . This shows that the Government did not apply its mind for determining whether it was necessary or not to acquire the land in dispute belonging to the Rajasthan Udyog, It was also urged that the learned single Judge failed to appreciate the crucial importance implicit to the amendment of Section 4. 7. In the present case no doubt the Impugned order under Section 4 has been issued in the phraseology as it existed in the unamended Section 4 and not in accordance with the phraseology of the amended section, but, nevertheless, it substantially complied with the requirement of Section 4. In our opinion, the mere use of the words contained in the unamended section in the order issued under Section 4, dated March 13, 1973, is not sufficient to invalidate the order. Simply because the word ^^izrhr** has been used in the impugned order it cannot be said that the order is bad in law or that the State Government did not apply its mind before issuing the immigned order under Section 4 (1) of the Act No. XXIV of 1953. All that the section requires is that before issuing an order under Section 4 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 379; यह प्रतीत होता है कि निन्म वर्णित स्थल में सावर्जनिक प्रयोजनार्थ अर्थात जर्नल इंजीनियरिंग वर्क्स के लिए भूमि की आवश्यकता है अथवा आवश्यकता होने की सम्भावना है ! 10. The purpose mentioned is too vague to give any idea to the person interested in the property for the purpose of preferring objections effectively under Section 5-A of the Act. The learned counsel urged that Law makes a clear distinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose to the objector and the appellant has been deprived of a valuable right to raise effective objections envisaged by Section 5-A of Act No XXIV of 1953. Reliance was placed on Gyan Devi v. The State of Rajasthan 1967 RLW 367. Shyam Behari v. State of Madhya Pradesh. AIR 1965 SC 427. 11. The learned Additional Advocate General urged that the effect of the amendment of Section 4 of Act No. XXIV of 1953 by Section 2 of the Rajasthan Act No XXII of 1966 is that the provision of Sub-section (1) of Section 4 is directory and its violation cannot annul the proceedings without proving prejudice to the affected party. He further urged that the General Engineering Works is a unit of the Hindusthan Development Corporation Ltd., and this fact was known to the petitioner-appellant. The appellant knew it very well that the land was being acquired for the company viz. the Hindustan Development Corporation Ltd. The appellant was not precluded from filing his objections, and detailed objections were filed by the appellant, which were considered by the Land Acquisition Officer under Section 5-A of the Act No XXIV of 1953 and were disposed of according to law. 12. We have giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such purpose, (b) to dig or bore into the sub-soil thereof, (c) to set out the boundaries of such land and the intended line of the work, if any, proposed to be carried out thereon or therein, (d) where otherwise the survey cannot be completed or the levels cannot be taken or the boundaries or the line cannot be set out, to cut down and clear away any part of any standing crop, fence or jungle, (e) to mark the levels taken or the boundaries or the intended line of work by placing marks and cutting trenches, (f) to do all other acts necessary to ascertain whether land is suitable for such public purpose, and fg) to inquire into end ascertain the particulars of the persons interested in such land: Provided that no person shall enter Into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without giving such occupier at least seven days' notice in writing of his intention to do so. (2) A copy of the order made under Sub-section (1) shall also be endorsed to the Collector of the district in which such locality is situated with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention that the lands specified may be ultimately acquired after service of public notice in the manner provided in Section 4 (5). Prior to the issuance of the notice under Section 4 (5) the Authorised Officer making an entry under Sub-section (1) is required to submit a report to the Collector on the result of his survey and the enquiry made thereunder. The purpose of such a report is to determine the suitability of the land for the purpose for which it is intended to be acquired. Thereafter, a notice under Sub-section (5) of Section 4 is required to be given to the persons mentioned in that sub-section. The purpose of such a notice is to afford an opportunity to the person interested in the land to be acquired to file objections under Section 5-A within 30 days of the service of the notice envisaged by Sub-section (5) of Section 4. Under the amended section it is the publication of the notice under Section 4 (5) which affords an opportunity to the owner of the land, to be acquired to file objections envisaged by Section 5-A and not the order issued and published under Section 4 (1). The effect of the amendment in Section 4 is that the limitation for filing objections which used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the respondents. The decision rendered in the case of Gyandevi v. The State of Rajasthan 19P7 Raj LW 367 is of no avail to the appellant. It is totally distinguishable both on facts and law. 10. In the notification issued in that case it was mentioned that the land was being acquired for public purposes by the Government out of public revenue. Any person reading that notification could not have possibly imagined that the land was being acquired for the purposes of respondent No. 3 of that case viz. Gosewa Sangh, because the notification specifically mentioned that it was acquired out of 'public revenue'. On the peculiar facts of that case it was held as under:-- Reading Sections 4, 5-A and 6 together we have no hesitation in coming to the conclusion that where a State seeks to acquire the land of another under the Act, it must mention in the notifications both under Sections 4 and 6 whether it intends to do so for a company or otherwise and where it fails to mention to give this information and issues a notification which prima facie indicates as if it intends to acquire such land for its own purpose, though it really intends to do so for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made in the writ petition itself, it cannot be said in the facts and circumstances of the case on hand that the appellant was put to a handicap in the matter of lodging objections, and, thereby, was prejudiced In para No. 6 of the above referred objections the appellant has mentioned that General Engineering Works is not a company but a unit, the proprietor of which is the Hindustan Development Corporation Ltd., Registered Office-27, Sir K. N. Mukherjee Road, Calcutta. As such by no stretch of imagination it can be said that the appellant thought at the time of filing objections under Section 5-A that the land was intended to be acquired for a factory owned by the State Government or a local authority. The purpose of an order under Section 4 (1) is to take preliminary proceedings preceding the intended acquisition with a view to finding after survey and taking levels and if necessary after digging and boring into the sub-soil. All this is done to ascertain the suitability of the land for which it was intended to be acquired. Indeed the order under Section 4 (1) is of exploratory character and discloses the tentative intention that the lands specified may be ultimately acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned. 20. Thus the prime importance is whether any prejudice was caused to the appellant. The question of causing prejudice to the appellant does not arise in this case for the reasons mentioned above, as the petitioner has not been deprived of his right of representation provided under Section 5-A of the Act No, XXIV of 1953. The case; Munshi Singh v. Union of India, AIR 1973 SC 1150 relied upon by the learned counsel for the appellant is also of no avail to the appellant. The appellant has in hot haste invoked the extraordinary jurisdiction under Article 226 of the Constitution of India before the decision of the objections made by him, under Section 5-A of the Act No. XXIV of 1953 and has failed to state how his case has been prejudiced. In Gopal Singh v. State of Rajasthan, AIR 1964 Raj 270 a Division Bench of this court, in para No. 14 at page 273 has observed as under:-- In a case where persons interested in the land come to know of the notification and they file their objections within time and the objections are decided by the Government under Section 5-A, absence of a public notice may not be considered a fatal defect for vitiating further proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 962 SC 764. Section 40 of the Rajasthan Land Acquisition Act No. XXIV of 1953 was amended in the year 1966 and Clause (aa) was inserted vide S 18 of the Rajasthan Act No. XXII of 1966. The case : State of West Bengal v. P. N. Talukdar, AIR 1965 SC 646 relied upon by the learned counsel for the appellant is of no avail to it because it is distinguishable on facts. The effect of insertion of Clause (aa) in Section 40 is that in addition to the purpose set out in clauses (a) and (b) the appropriate Government can give its consent if it is satisfied that a third purpose set out in the new clause (aa) exists. Clause (aa) newly introduced in Section 40 provided for acquisition of land needed for construction of some building or work for a company which is engaged in taking steps for engaging itself in an industry or work which is for a public purpose. It implicitly intends that the building or work which is intended to be constructed must be such, that which subserves the public purpose of the industry or work in which the company is engaged or is about to be engaged. The land which is being acquired in the case on hand is being acquired for Hindustan Development Corporation Ltd., which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if the Land Acquisition (Companies) Rules, 1963 are held to be not applicable, yet it will not make any difference because Rule 32 of the Rajasthan Land Acquisition Rules, 1956 is pari materia to Rule 4 of the Land Acquisition (Companies) Rules, 1963. Non-compliance of this rule has the effect of vitiating the entire proceedings. Before initiating the land acquisition proceedings at the instance of the Company namely the Hindustan Development Corporation Ltd. the State Government ought to have directed the Collector, Bharatpur to submit a report on the matters mentioned in Rule 32 of the Rajasthan Rules. The learned counsel urged that D. O. letter No. BO (71) Ind/72 Jaipur (Rajasthan), dated Nov. 15, 1972 issued by Shri N.S. Sisodia, Deputy Secretary, Industries, to Mr. Anil Kumar, the then Collector, Bharatpur, and the reply by the Collector to the Secretary vide his letter No. 133 dated 8/17th January, 1973 can by no stretch of imagination be termed to be a compliance of Rule 32 of the Rajasthan Rules. The Collector for doing such an enquiry is required to apply certain objective test before expressing opinion on various matters referred to in Sub-clauses (i) to (vi) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (ii) determine, having regard to the provisions of Sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land, which, in the opinion of the Collector, should be acquired for the Company; and (iii) ascertain whether the company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the land proposed to be acquired. Explanation:-- For the purpose of this rule good agricultural land means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land. (3) As soon as may be after holding the enquiry under Sub-rule (2) the Collector shall submit a report to the appropriate Government and a copy of the same shall be forwarded by that Government to the Committee. (4) No declaration shall be made by the appropriate Government under Section 6 of the Act unless:-- (i) the appropriate Government has consulted the committee and has considered the report submitted under this rule and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove-average productivity and includes a garden or grove land. (3) As soon as may be after holding the enquiry under Sub-rule (2), the Collector shall submit a report (in duplicate) to the State Government. (4) No declaration shall be made by the State Government under Section 6 of the Act unless the agreement under Section 41 of the Act has been executed by the Company. 28. From a comparative study of both the Rules mentioned above, we find considerable force in the contention of the learned counsel for the appellant, that if the non-compliance of Rule 32 of the Rajasthan Land Acquisition Rules, 1956 is held to be proved then it would have the effect of vitiating the impugned notification dated March 13, 1973 and subsequent proceedings taken thereafter. On July 25, 1972 the respondent No. 6 Hindustan Development Corporation Ltd., submitted an application (shown at page 134 of the paper book). The respondents are not in a position to show as to what happened to this application up to November 1972. The only document relating to the subject-matter of the application on the record is a D. O. letter No. 4 (71) Jnd/72, dated November 15, 1972 addressed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the land in the locality is or likely to be needed for a public purpose. It is also to enable the authorised officer to do certain acts specified in Section 4 (1), so as to decide which particular land is to be acquired. After an enquiry under Rule 32, the Government was not bound to issue a notification under Section 4 (1). After the publication of the impugned notification dated May 13, 1973 and the enquiry under Section 4 (1), a notice in the prescribed form was given to the appellant under Section 4 (5). The appellant submitted his objections under Section 5-A. He had the opportunity to convince the Government that the proposed land should not be acquired and as such the appellant is not entitled to any relief on the ground that an opportunity to be heard was not given to him in an enquiry made under Rule 32. 29. A bare perusal of Rule 32 reveals that the Collector under Sub-rule (2) of Rule 32 is required to determine, having regard to the provisions of Sections 23 and 24 of the Act, the approximate amount of compensation payable in respect of the land intended to be acquired. In the report required to be submitted to the State the Collector is also required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rules. 1956 clearly reveals that the nature of enquiry under Section 5-A of the Act and Rule 32 of the Rules of 1956 is altogether different. The matter which is to be enquired into under Rule 32 and in particular the point that the Company made all reasonable efforts to get the land by negotiations and the price offered to the person interested in the land was a fair price is beyond the scope of the enquiry under Section 5-A of the Act. For the reasons mentioned above, we hold that the enquiry contemplated under Rule 32 is not of administrative nature. 32. The other contention raised by the learned counsel appearing on behalf of the respondents is that there is nothing in Sections 4, 39, 40, 41 of the Act and Rule 32 of the Rules of 1956 under which it is not feasible or possible for the Rajasthan Government to obtain a report under Rule 32 after the issuance of the notice under Section 4 (1) of the Act and before the issuance of the notice under Section 6 of the Act. The appellant in hot haste has invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution of India, even prior to the determination of the objections filed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant of that case that the enquiry under Rule 4 ought to have been held after the notification under Section 4 was issued and not before; and therefore the enquiry held was not valid. Their Lordships of the Supreme Court repelling that contention observed as under (at p. 437):-- Next it was urged that the inquiry under Rule 4 has to be held after the notification under Section 4 is issued and not before and therefore the inquiry held by Master was not valid. We do not find anything in Rule 4 or in any other Rule to warrant such a proposition. The inquiry, the report to be made consequent upon such inquiry, obtaining the opinion of the Land Acquisition Committee, all these are intended to enable the Government to come to a tentative conclusion that the lands in question are or are likely to be needed for a public purpose and to issue thereafter Section 4 notification. 36. Thus it can be safely said that the requirement of law is that the enquiry under Rule 32 should be made prior to the issuance of notification under Section 4 of the Act. 37. Considered from another angle, the argument that the inquiry can be made under Rule 32 after publication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed reasonable price to the person interested or not. The provisions of Rule 4 of the Companies Acquisition Rules are pari materia to Rule 32 of the Rajasthan Land Acquisition Rules, 1956. While interpreting these rules the Hon'ble Chief Justice speaking for the Court observed in State of Gujarat v. Chaturbhai that the owners of the lands sought to be acquired for a company are entitled to an opportunity of being heard in an enquiry under Rule 4 of the Rules, and in an enquiry under Section 40 of the Act. In the absence of such an enquiry the acquisition proceedings are vitiated. The law laid down by the Supreme Court of India is binding on all courts. On the parity of reasoning of the case the State of Gujarat v. Chaturbhai we hold that the compliance of Rule 32 of the Rajasthan Land Acquisition Rules, 1956 has not been made in the case on hand. 40. The net result of the above discussion is that this appeal is accepted and the judgment of the learned single Judge dated July 23, 1974 is set aside. The writ petition No. 369 of 1974 is allowed. The impugned notification dated March 13. 1973 and all the proceedings taken thereafter are quashed. In the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
