VERMA, J. - (1.) THE only question which arises in the present writ petition is whether the respondents are competent to take over the possession of part of Khasra No. 35 situated in village Bhojpura, Jaipur near Jaipur as deemed to have been acquired without issuing any notification u/s 4 and 6 of the Land Acquisition Act was applicable at the relevant time and also whether if by mistake or otherwise by in-advertance compensation is determined for the land in question in the award even though not acquired, which could not have been so determined for the reason that the land was never so acquired by any notification and the said compensation having been paid to the petitioner or his predecessors, which compensation as now admitted and not denied, as a matter of fact, stands refunded to the respondents and the respondents having accepted back the above said compensation, are still entitled to say that the land measuring 3 Bighas 10 Biswas out of Khasra No. 35 which Khasra number measured 3 Bighas and 16 Biswas has vested in the respondents and whether that the petitioner can be deprived of the fruits and the utilisation of this land which was never acquired in accordance with law and whether the petitioner can be deprived of his property without authority of law?
(2.) THE admitted facts are that Shri Chotte Lal son of Jhuntha Ram Mali was holding a Khatedari right of Khasra Nos. 34 measuring 2 Biswas, Khasra No. 35 measuring 3 Bigha 16 Biswa, Khasra No. 36 measuring 6 Biswa, Khasra No. 37 measuring 10 Biswa and Khasra No. 277 min. measuring 10 Biswa situated in village Bhojpura Tehsil Jaipur presently known as Jyoti Nagar, Jaipur. Vide notification dated 13. 5. 1960 issued u/s. 4 of the Land Acquisition Act as published on 9. 6. 1960 at page 151 of the Gazette certain land was acquired. THE intention was show to acquire the aforesaid khasra numbers of Khatedari of the father of the petitioner along with other land mentioned in the notification for the purpose of constructing a stadium and the High Court building etc. While issuing notification u/s 6 of the Rajasthan Land Acquisition Act which provisions were applicable at the relevant time, the notification was issued for acquisition of 6 Biswas of land only of khasra No. 35 and not for the remaining land of this khasra. Even though certain other land was also acquired of the petitioner, but the present writ petition is confined only to 3 Bigha and 10 Biswa of land in khasra No. 35 and, therefore, the acquired number of other khasra numbers are not being mentioned here being not relevant for the decision of the present case. Award was passed by the Land Acquisition Officer on 9. 1. 1964. However, the Land Acquisition Officer who had passed the award determined the compensation for whole of the khasra No. 35, i. e. 3 Bigha and 16 Biswa which admittedly he was not entitled to determine for the reason that there was no notification u/s 4 or 6 of the Rajasthan Land Acquisition Act in regard to the major part of Khasra No. 35 measuring 3 Bigha and 10 Biswas. This very matter in regard to some other khasra numbers which were not acquired for not having been notified but still included for compensation was taken up in the High Court by number of land owners in Durga Lal vs. State of Rajasthan (1), Mangla vs. State of Rajasthan (2), Satya Narain vs. State of Rajasthan (3), and Ishwar Ram vs. State of Rajasthan (4), which were the writ petitioners on the fact that the State was not authorised to take over the land or part of the land in khasra number for which no notification u/s 4 or 6 had ever been issued. A Single Bench of this court had held that for the reasons that the land in question had not been notified in the notifications by the State Government, therefore, the land could not have been acquired under the impugned notifications and that such land did not vest in State. Notifications of acquisition in the above said judgments were the same as in the present writ petition. The Court had observed as under: `there is, however, a fundamental defect in some of the writ petitions and that defect relates to the non-mentioning of certain khasra numbers in the notification issued under section 4 of the Act which are now sought to be acquired. In Writ Petition No. 150 of 1970 Durgalal vs. The State of Rajasthan and others (supra) Khasra No. 298/523 measuring 4 Biswas has not been mentioned in the notification issued under Section 4 of the Act. Similarly, in Writ Petition No. 188 of 1970 Mangla vs. The State of Rajasthan and others (supra) Khasra No. 204/503 measuring 3 Biswas, Khasra No. 210/544 measuring 5 Biswas; in Writ Petition No. 189 of 1970 Satya Narain vs. The State of Rajasthan and others (supra) Khasra No. 298/524 measuring 6 Biswas; in Writ Petition No. 261 of 1970 Ishwari Ram vs. The State of Rajasthan and others (supra) Khasra No. 45/496 measuring 6 Biswas have not been mentioned in the notification issued under section 4 of the Act. Since the lands mentioned hereinabove have not been notified by the State Government, they cannot be acquired under the impugned notification. ' `the result is that Writ Petition No. 1719 of 1970 Indrapuri Grah Nirman Sahkari Society Ltd. vs. The State of Rajasthan and others is allowed as aforementioned; Writ Petition No. 150 of 1970 Durgalal and others vs. The State of Rajasthan and others. No. 188 of 1970 Mangla vs. The State of Rajasthan and others, No. 189 of 1970 Satya Narain and others vs. The State of Rajasthan and others and No. 261 of 1970 Ishwari Ram vs. The State of Rajasthan and others (supras) are partly allowed. Khasra No. 298/523 measuring 4 Biswas in Writ Petition No. 150 of 1970. Khasra No. 204/503 measuring 3 Biswas and Khasra No. 210/504 measuring 5 Biswas in Writ Petition No. 188 of 1970, Khasra No. 298/524 measuring 6 Biswas in Writ Petition No. 189 of 1970 and Khasra No. 45/496 measuring 6 Biswas in Writ Petition No. 261 of 1970 shall not be deemed to have been acquired by the State Government by issuing the impugned notification and taking further proceedings in pursuance thereof. ' However, certain other writ petitions including the writ petition of Surajmal and others vs. State of Rajasthan and others (5), challenging the notification of acquisition itself on certain other grounds were dismissed by the learned Single Judge on the ground that the objections in regard to the notifications were being taken after a considerable delay. Those writ petitioners whose writ petitions were dismissed on the point of delay did file the appeals being Special Appeal Nos. 310, 311, 313 to 326 and 335 of 1971 (Surajmal and others vs. The State of Rajasthan and others and other connected maters) The special appeals were dismissed by the Division Bench. However, the Division Bench had observed that if any part of land in the writ petitions which were subject matter of the appeals had not been acquired by way of any notification and in that situation a direction was issued by the High Court to the respondents not to take possession of these lands because they were not duly notified u/s 4 and 6 of the Land Acquisition Act. The Division Bench observed as under:- `lastly, Mr. Rastogi argued that in appeal No. 335/71 land bearing No. 212/505 was not notified under Section 4 or under Section 6 of the Acquisition Act. This chuck of land measures 4 Biswas and the appellant is entitled to the same treatment as the learned Single Judge has given in Writ Petitions Nos. 150, 188 and 189 of 1970. It was also argued by Mr. S. M. Mehta that lands bearing No. 266/520 and 267/521 measuring 4 Biswas and 2 biswas respectively were not notified under Sections 4 and 6 and they deserve to be treated in a similar fashion. As the learned Single Judge despite holding that the petitions were delayed granted relief to others in regard to lands which were not included in the notifications under Sections 4 and 6, we consider it just and proper to grant similar relief in our appellate jurisdiction in regard to the lands bearing khasra Nos. 266/520, 267/521 and 212/505 and the respondents are directed not to take possession of these lands because they were not duly notified under Sections 4 and 6 of the Acquisition Act. '
(3.) IN view of the above-said position, the counsel for the petitioner states that the land in question for which there was no notification, nor the acquisition was notified u/s 4 or 6, even if by mistake the Land Acquisition Officer had determined the compensation and received by the petitioner by way of mistake as treating it to be the compensation for part of Khasra number which was acquired i. e. 6 Biswas only and now having been refunded back to the State Government and the State Government having so accepted and not sending it back to the petitioner, the land of the petitioner cannot be deemed to have been acquired by any stretch of imagination and the dictum of the Civil Writ Petition No. 261/70 (supra) and the dictum as given by the Division Bench in AIR 1974 (Raj.) 116 (supra) were fairly applicable in the case of the petitioner as well. The father of the petitioner Chottey Lal had filed an earlier writ petition No. 2935/92 challenging the threat of deemed acquisition in regard to the same land of khasra No. 35 which was however, dismissed on 15. 3. 1994 on technical grounds but not on merits. The special appeal being Special Appeal No. 245/94 against the aforesaid order was also dismissed on the aforesaid ground and not on merits. The Government became aware of the omission of acquisition and issued a fresh notification u/s 4 in regard to the above said land on 7. 1. 1971 (Annexure-5), but some-how again a mistake or omission was committed and the Government faulted in not issuing any notification u/s. 6 of the Act which was to follow the notification u/s. 4 (Annexure-5) which was mandatory in nature. The matter was again taken up by the Land Acquisition Officer on 25. 5. 1994 and vide Annexure-6 the Land Acquisition Officer had ordered that for the reasons that even after about 25 years of the notification issued u/s. 4 (Annexure-5), no notification u/s. 6 had been issued, therefore, the notification dated 7. 1. 1971 stood lapsed. Even as per the order of the Land Acquisition Officer in Annexure-6, it is submitted that the petitioner had an additional fresh cause of action passing of the order Annexure-6 and thus the present writ petition has been preferred with the prayer mentioned in the writ petition on the ground that petitioner can not be deprived of his property except by the process of law i. e. until and unless a valid and proper notification is issued under the Land Acquisition Act, till then no deeming clause of acquisition can be invoked for the acquisition of the land; It is further submitted that there was no notification issued in the year 1960 or 1961 u/s 4 or 6 in regard to the part of the land 3 Bigha and 10 Biswa falling in Khasra No. 35 and for the first time notification u/s. 4 was issued on 7. 1. 1971 which stood automatically lapsed as per order Annexure 6 for the reason that no notifi- cation u/s. 6 was issued; it is the submission that no acquisition can be allowed unless the land is notified for acquisition; Notification u/s. 4 is sine qua non for further acquisition proceedings. ;