- (1.) Heard. The writ appeal has been preferred as against the order dated 1.4.2009 passed by the Single Bench in CWP No. 5356/2008.
(2.) The appellant/petitioner has submitted that the petitioner is a registered company and it entered into an agreement to sale on 1.11.1995 in respect of parcel of land which was subject matter of land acquisition notification issued under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') on 29.8.2007. Declaration under Section 6 was issued on 17.12.2007. The writ application was preferred in May, 2008. Award has been passed on 5.12.2008. The notification issued under Section 4 of the Act mentions that there was proposal to acquire the land for the purpose of protecting cenotaph which is of historical importance situated near Amer Mahal and Nahata water reservoir along with Mohan Badi which are protected monuments and thousands of foreign tourists visit these places every day. The cenotaph in question is situated on Jaipur-Delhi road near Amer Fort towards left side near Pariyon Wala Bagh in front of Peer Baba Mazar and there was water reservoir in khasra No. 5580/9104 in Amer, Tehsil Amer, District Jaipur. There was a cenotaph admeasuring 25 feet high on the platform which is of historical importance. There was eminent danger to historical cenotaph and the land around it was likely to be damaged/distorted and lands were likely to be sold by dividing into plots and there was possibility of residential/non-residential structures coming in the area which would cause obstruction in viewing of Jaigarh and Amer Mahal and construction would caused obstruction in flow water to water reservoir area also. Thus, the State Government has decided to acquire the lands for public purpose under Section 4 of the Act. Consequently, the notification under Section 4 was issued on 29.8.2007, validity of which has been put into question along with declaration made under Section 6 on 17.12.2007. No objection was filed by the petitioner under Section 5A of the Act. The petitioner has questioned the validity of the notification issued under Section 4 of the Act and declaration issued under Section 6 of the Act on various grounds contending that knowledge was gathered by the petitioner of land acquisition in April, 2008. Thus, it was not possible to file objections under Section 5A of the Act. The petitioner entered into agreement to purchase land on 1.11.1995. The Department of Tourism, Art and Culture had made a recommendation in favour of the petitioner for construction of Five Star hotel in the area in question. Thus, they were bound by the representation which was made way back in the year 1998. At the instance of the same department, it was not appropriate to make acquisition of the land. It is colourable and malafide exercise of power to acquire the land just to defeat the rights of the petitioner accrued under the agreement dated 1.11.1995.
(3.) The stand of the respondents in the reply is that the award has been passed. Land is not recorded in the name of petitioner. The agreement is on a stamp paper of Rs. 10/- which is unregistered and stamp duty has also not been paid. Agreement is not enforceable in the eye of law. Hence, the petition questioning land acquisition cannot be entertained on the strength of the said agreement. Decision has been taken by the State Government to preserve historical monuments and places in view of Article 49 of the Constitution of India which enjoins a duty upon the State Government to protect every monument or place or object of artistic or historic interest and to prevent them from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.;