LAKSHMANAN, CJ. - (1.) HEARD both the sides.
(2.) THIS appeal is directed against the judgment dated 4. 11. 1997 delivered by the learned Single Judge of this Court in S. B. Civil Writ Petition No. 4028 of 1995. The appellant, wife of the deceased land-owner, filed the writ petition claiming compensation for the land measuring 5 bighas 10 biswas which has been utilised by the State of Rajasthan for construction of the road. The short facts of the case are as follows: The appellant's husband purchased land measuring 21 bighas and 17 biswas falling in Khasra No. 57 of Village Chopasani District Jodhpur (Annex. 1 ). After purchase of the land in question the mutation was entered in the name of the husband of the appellant. In the year 1977-78 during the famine operations the respondents constructed a road through the land of the appellant in which the land to the extent of 5 bighas and 10 biswas was covered by the road. After construction of the road the mutation in the record was made in the name of he Public Works Department to the extent of 5 bighas and 10 biswas (Annex. 2 ). Thus, the land stood in the name of the appellant's husband was reduced to that of 16 biswas and 7 biswas (Annex. 3 ). The husband of the appellant died in the year 1982. Though the respondents have constructed the road through the land in question taking away 5 bighas and 10 biswas of land, neither the land acquisition proceedings were initiated nor any compensation was determined and paid to the husband of the appellant. Along with the appellant the land of the other persons was also taken away in the process of construction of the road. All these persons approached the respondents for determination of payment of compensation. They also sent notice for demand of justice. But there was no response. Respondents proposed to construct Jodhpur Bye-pass and this bye-pass was also to be constructed covering the road which was already constructed in the year 1977-78. A Notification u/s. 4 of the Land Acquisition Act, 1894 (hereinafter to be referred as the Act) was issued by the respondent No. 1 under Annex. 5. This notification did not include the land of the appellant. However, another notification was issued u/s. 6 read with Sec. 17 sub- clause 4 of the Act which included the land of the appellant to the extent of 6 bighas and 15 biswas (Annex. 6 ). The appellant submitted objection to the respondent No. 4 on 6. 5. 91 (Annex. 7 ). On the objection of the appellant the proposed compensation of the land was determined and paid to the appellant in the year 1992. Although the compensation for additional land acquired by these notifications was paid to the appellant but no compensation for the land taken in the year 1977-78 had been paid to the appellant so far. The appellant made a representation to the Governor of Rajasthan and also to the Minister for Public Works Department. It was accepted by the respondents No. 2 to 4 that road was constructed on the land of the appellant but since it was done under the famine operations, therefore, no compensation was paid. The appellant sent notice for demand of justice to the respondent through her counsel on 2. 10. 95. Thereafter, the writ petition was filed by the appellant directing the respondents to acquire the land measuring 5 bighas 10 biswas of the appellant used for construction of the road in the year 1977-78 in accordance with the provisions of the Act and further be directed to determine and pay the compensation thereunder to the appellant and also direct the respondent to pay special damages etc. In the writ petition show cause notices were issued to the respondents on 8. 12. 95 but no reply was filed. On 17. 10. 97, the learned Single Judge called upon the appellant to explain the delay in filing the writ petition. Explanation to the delay was also submitted on 4. 11. 97. Further it was submitted that the writ petition was disposed of without taking written reply from the respondents. No opportunity to meet the verbal allegations of the respondents was given to the appellant and the learned Judge had dismissed the writ petition by his judgment dated 4. 11. 97. Aggrieved by the said judgment, the appellant has preferred this appeal. During the pendency of the appeal a reply to the writ petition was filed on behalf of the respondents on 23. 3. 99. In para 3 of the said reply it is stated as under:- " That the contents of para No. 3 of the writ petition are admitted to the extent that during famine operations in the year 1977-78 the answering respondents constructed a road and a part of the land belonging to Late husband of the petitioner was also covered for the purpose of road. However, it will be pertinent to mention here that the land as referred in this para was agreed to be utilized by the respondents by way of mutual consent and Late husband of the petitioner never raised any objection at the time of construction of the road nor subsequently during his life time that land has been utilized for the purpose of road without his consent. Thus for all purposes it shall be deemed that part of the land belonging to Late Shri Madan Pal Singh was utilized by mutual consent".
(3.) IT is further submitted that the appellant-petitioner who had only stepped into the shoes of her Late husband has no right to question the same after a lapse of about 18 years i. e. in the year 1995 by way of filing the present writ petition. IT is stated in para 6 of the reply that there was no necessity to initiate the said land acquisition proceedings because the entire process of constructing the road was completed by mutual consent of the parties. In the year 1970-71 the Relief Department issued a circular with regard to the acquisition of land for relief works. In this circular it is provided that whatever land is required for the purpose of relief works, the same be obtained without payment of any cost by mutual consent. IT was provided that the normal procedure for payment of compensation will not be applicable in respect of relief works. A decision was also taken by the government in regard to payment of compensation. When some dispute arose, it was made clear that there is no budgetary provisions in the Relief Department nor any such compensation has ever been paid by the Relief Department and, therefore, no compensation can be paid by the Relief Department. The appellant's husband has not raised any objection as per circular Ex. RI and no objection was raised by him at the time of construction of the road nor at a subsequent stage during his lifetime and therefore, writ petition is an afterthought. Rejoinder to the reply was filed by the appellant on 8. 4. 99. A reply to the rejoinder was also filed on behalf of the respondents on 15. 3. 2000. ;