- (1.) R. K. Mahajan, J. This is a writ petition filed by the petitioner Shri choudhaiy Ram Harakh Chand seeking writ, direction or order in the nature of certiorari quash ing the Notification No. 90/viii-2 (80-81) BHU-AA dated 12-11- 1980 and Notifica tion No. 5603/5-8-XVI-1075-81 dated 27th February, 1984 (Annexure Nos. 1 and 3 respectively ). By virtue of which Notifications for acquisition of land of 2. 02 acre was made on 12-11- 1980 for the construction of Swasthya Raksha Samiti Janta Hospital, Gorakhpur. Annexure No. 3 to the writ petition relates to declaration under Sec tion 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act of 1894 ). After declaring the purpose of land to the public and it is mentioned that the objections under Rule 4 of the Land Acquisition (Companies) Rules, 1963 (hereinafter referred to as the Rules of 1963) in consultation with the land acquisi tion committee constituted under Rule 3 of the said Rules of 1963 has been taken care of. This notification also speaks of issuance of notification under Section 17 of the Act of 1894.
(2.) THE brief facts on which this petition has arisen are as detailed hereunder. THE petitioner is lessee of plot No. 134 situate in Chawani ('cantonment), Gorakhpur area 7. 95 acres. It was granted to one Shri Sahi Mahabir Prasad Choudhary by the Secretary of Government of India under permanent lease on 21- 4-1910. THE petitioner's grand father Mahabir Prasad Chowdhary constructed residential bungalow, out houses, garrage and servant quarters over the land and the said bungalow is now designated as No. 22. Later on, part of the land was donated with the permission of Government for construction of Nursery School and for estab lishing telephone exchange. THE remaining land now comprised out houses, garrage, Kitchen, lawn etc. THEre is one society namely Swasthya Raksha Samiti, Gorakhpur said to have been established by Dr. Om Prakash Joshi and Dr. Badri Prasad Joshi, his son and they are private practioners and established a clinic known as Janta Chikitsaiaya near Reti Chowk, Kali Bari, Gorakhpur. It is charging exorbitantly from the patients. It is alleged that Dr. Badri Prasad Joshi in order to deprive the petitioner from valuable property of 2. 02 acres of land approached the Government for acquisition of the land for establishment of a hospital and the land Acquisition Collector under Chapter VII of the Act of 1894 issued notification on 21- 3-1981 as mentioned in impugned notification (Annexure-No. 1 ). THEreafter the petitioner also filed objections under Sections 5 of the Act of 1894 (Annexure No. 2) raising objections for the acquisition. The grievance of the petitioner is that Section 39 of the Act of 1894 has been amended by U. P. Act No. XXII of 1954 and the amended section provides that the provision of Sections 6 and 7 will apply in cases of acquisition for societies registered under the Societies Registration Act, 1860. It is relevant to quote Section 40 of the Act of 1894: "40-Previ'oms enquiry.- (1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under Section 5-A, sub-sec tion (2) or by an enquiry held as hereinafter provided- (a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or (aa) that such acquisition is needed for the construction of some building or work for a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or . . . . . . . . . . . . . . " Section 40 of the Act of 1894 provides that the State Government shall not give consent for acquisition as averred in Para 12 of the petition unless it is satisfied on the report of the Collector under Section 5 (1) of the Act of 1894 and after holding enquiry clause (b) of Section 40 provides that if the acquisition is being done for usefulness of the public after satisfaction of the State Government. It is averred that the Central Government has framed rules in exercise of power under Section 55 of the Act of 1894 in respect of the acquisition for companies. These rules are known as Land Acquisition (Companies) Rules, 1963. Admittedly the present case is governed by these Rules. It is contended by the learned counsel that Rule 3 of the Rules of 1963 provides for the purpose of advising the appropriate Government in relation to acquisition of land under Part VII of the Act the appropriate Government shall, by notification in the official Gazette, constitute a committee to be called Land Acquisition Committee. Rule 4 of the Rules of 1963 further provides that the State Government shall hold an enquiry in respect of following matters before initiating acquisition proceedings and Government shall direct the Collector to submit a report to it on following matters :- (i) that the company has made its best endeavour to find but lands in the locality suitable for the purpose of acquisition; (ii) that the Company has made all reasonable efforts to get such lands by negotiations with the persons interested therein on payment of reasonable price and such efforts have failed; (iii) that the land proposed to be acquired is suitable for the purpose; (iv) that the area of land proposed is to be acquired is not excessive; (v) that the Company is in a position to utilize the land expeditiously; and (vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land. It is contended by the petitioner counsel that sub- rule (4) of the Rules further provides that no declaration shall be made by the Government under Section 6 of the Act of 1894 unless the Government has constituted the Committee and has considered the report and agreement under Section 41 of the Act of 1894 has been executed by the Company for whom acquisition is being made. It is further submitted that proceedings for acquisition were initiated by the Collector by Notification under Section 4 of the Act of 1894 on March 21,1981 without obtaining permission of the State Government as required under Section 40 of the Act of 1894. It is further contended that the petitioner was not given hearing by the Collector or Land Acquisition Committee. Neither Swasthya Raksha Samiti nor the Collector or any negotiations with the petitioner, who was the owner of the land nor he was given any opportunity of proving or disproving matters on which Collector was required to submit report under Rule 4 of the Rules of 1963. The petitioner was not given report of the Collector under Rule 4 of the Rules of 1963 and it is not known on what material the Notification under Sections 4, 6 and 7 of the Act of 1894 were issued without hearing the petitioner's objection and giving a finding on every aspect of Rule 4 of Rules of 1963. This being so, the petitioner has described the notification illegal and without public purpose. The impugned notification has also been described as invalid and Section 17 (1) is not applicable to waste or arable land. It is also alleged that there are so many Hospitals in Gorakhpur and. there was no necessity to resort the provisions of Section 5 or Section 17 of the Act of 1894. On this broad averments the petitioner seeks to quash the notifications. The respondent No. 3 filed counter affidavit and relevant paragraphs are Para Nos. 27, 28 31 and 34 and the gist of the same is mentioned hereinafter. It is alleged in Para No. 27 that agreement has been executed by the Swasthya Raksha Samiti with the Land Acquisition Committee and the State Government but the same has not been brought on the record. It is also mentioned in Para No. 31 that the opportunity was afforded under Section 5 (A) of the Act of 1894 and Rule 4 of Rules of 1963 and in fact the petitioner want to harass the Samiti and put obstacles in the acquisition proceedings. It is alleged that the Society is doing charitable work by providing free and efficient medical aid and has spent a lot of money in purchas ing material and equipment for establishing hospital.
(3.) THE respondents No. 1, 2 and 4 have also filed counter affidavit alleging that the Samiti is a private body but it is a registered body within the meaning of Society Registration Act, 1860. It is also alleged that the Society is running private clinic and the society has funds to run the hospital and also stated that the petitioner alongwith his family is not living in the said bungalow. THE learned counsel for the petitioner has relied upon Rule 4 of Act of 1894 and has relied upon Supreme Court judgment Shyam Nandan Prasad v. State of Bihar reported in (1993) 4 SCC 255. THE learned Counsel for the respondent submitted that enquiry under Section 5-A of the Act of 1894 as well under Rule of Rules of 1963 was conducted and no prejudice has been caused. It is admitted fact that the society is a company within the meaning of Section 3 of the Act of 1894. Section 3 (e) of the Act of 1894 is quoted hereunder: "3 (e) the expression "company" means- (i) a company as defined in Section 3 of the Companies Act, 1956, other than a Government Company referred to in clause (cc); (ii) a society registered under the Societies Registration Act, 1860, or under any cor responding law for the time being in force in a State, other than a society referred to in clause (cc); (iii) a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, other than a co-operative society referred to in clause (cc); There is no dispute that it is a society registered under Society Registration Act, 1860 and it is a company. The acquisition of land is governed under company Rules of 1963 framed in exercise of power conferred under Section 55 of the Act of 1894. The purpose of the Rule 4 of the Rules of 1963 is that land of the effected person is not grabbed or taken away without a real purpose. The Collector has to give a finding on each and every objection raised under Rule 4. Rule 4 of Rules of 1963 is quoted hereunder: "4. Appropriate Government to be satisfied with regard to certain matters before initiat ing acquisition proceedings.- (1) Whenever a company makes an application to the ap propriate Government for acquisition of any land, that Government shall direct the Collec tor to submit a report to it on the following matters, namely- (1) that the company has made its best endeavour to find out lands in the locality suitable for the purpose of acquisition; (ii) that the company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed;. ' (iii) that the land proposed to be acquired is suitable for the purpose; (iv) that the area of land proposed to be acquired is not excessive; (v) that the company is in a position to utilize the land expeditiously; and (vi) where the land proposed to be acquired is good agricultural land, that no alterna tive suitable site can be found so as to avoid acquisition of that land. (2) The Collector shall, after giving the company a reasonable opportunity, to make any representation in this behalf, held and inquiry into the matters referred to in sub-rule (1) and while holding such enquiry he shall - (i) in any case where the land proposed to be acquired is agricultural land consult the senior Agricultural Officer of the district whether or not such land is good agricultural land; (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 ac quired. 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 the 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 report, if any, submitted under Section 5-A of the Act; and (ii) the agreement under Section 41 of the Act has been executed by the company. " The first portion of section lays down that Collector has to submit a parawise report with respect to (i) to (vi) and thereafter the Collector is to give a reasonable chance to company, if any, objection and then hold enquiry into the matters mentioned in sub-rule (i) There are other conditions mentioned in sub-rule (ii) of the Rules which he has to fulfill. After holding enquiry the Collector is bound to submit the report to the Government and after receiving the report there is another obligation on the Government before issuing notices under Section 6 of the Act that it has to consult the committee formed under Rule 3 and the report if any of the Collector under Section 5 and the agreement under Section 41 of the Act of 1894 executed between the company and the petitioner. Under rule 3 there is a provision for formation of a committee for acquisition of land under part Vllth of the Act of 1894. It is an advisory body to tender its advice within one month from the date of which it is constituted. Though the time can be extended by two months and Collector can again hold enquiry in a quasi-judicial manner and would give the company a reasonable opportunity in that behalf but would also to fulfil the requirements of rules of natural justice, give sufficient opportunity to the land owners to refute the case of company at least in so far as a matter like negotiation of price is concerned actual need as also on other relevant matters. So it means that under Rules 3 and 4 buyer and seller are afforded opportunities to appear before the report is sent to the Government under Rule 4. There is an observation of the Supreme Court. 7, It is held in this Ruling that Rule 4 is mandatory and essential to be complied with and various decisions have been relied upon i. e. State of Gujarat v. Patel Chaturbhai Sarsibhai, (1981) 2 SCC 352. There is one more requirement which has not been fulfilled nor there is any evidence that gazette notification has been published under Section 42 of the Act of 1894 which lays down that the agreement shall a*s soon as may be after its execution be published in the official Gazette and shall thereupon have the same effect as if it had formed part of this Act/the ration ale behind this is that public may oppose the terms of the agreement. In fact Rules 3 and 4 and the publication of agreement in the Gazette and the filing of the agree ment with the Government under Section 41 are mandatory after making enquiry. We are of the view that there is violation of this Section. 8, We are of the opinion that the Rule 4 of the Rules of 1963 which is mandatory has not been complied with. We are also of the view that possession has not. been taken as no evidence has been placed on record in pursuance of the Notification made under Section 17 of the Act of 1894 or otherwise. We are also of the view that since the possession was not taken, as such land did not vest with the Government/society and there is an interim order of the Court that possession if not taken would not be disturbed. We are also of the view that since the title has not been divested as it would have only been divested if the possession has been taken in pursuance of Section 17- read with Section 48 of the Act of 1894. In our considered opinion there is no compliance of Rule 4 of the Rules of 1963. Even the objections under Section 5 of the Act of 1894 were not decided in view of the stay order of the Court. We are also of the opinion that there is no compliance- of Section 4 of the Act of 1894 that agreement was published in the Gazette. Thus inbuilt safeguards provided in the Rules, and other provisions of the Act have not been observed and there is a complete prejudice to the rights of the 'petitioners and other effected persons. We are also of the view that Rule 4 framed under Section 55 of the Act of 1894 is delegated piece of legislation and has equal force of law and its compliance is mandatory, as observed. Under these circumstances, we quash the notifications dated 12-11-1980 and 27-2-1984 (Annexure Nos. 1 and 3 respectively to the writ petition') and allow the writ petition. No order as to cost. Petition allowed. .;