- (1.) THE appellant has questioned legality of the order dated 27.3.2012 passed by Single Bench in Civil Writ Petition No.9182/05.
(2.) , For extension of Airport at Jaipur, land acquisition proceedings were initiated more than four decades ago way back in the year 1969. Notification under Section 4 of the Rajasthan Land Acquisition Act, 1953 was issued on 21.7.1969. Declaration under Section 6 was made on 28.2.1973 and published in the Official Gazette on 12.4.1973. Original Khatedar, namely, Sardar Labh Singh filed Writ Petition No.1446/74 questioning the land acquisition proceedings which came to be dismissed on merits vide order dated 8.5.1975. Intra court appeal which has been filed before the Division Bench as against dismissal of the writ application was also dismissed. The Rajasthan Land Acquisition Act was repealed on 24.9.1984. Award was passed on 28.12.1988. Petitioner-Topakhana Desh Grah Nirman Sahakari Samiti entered into three agreements to purchase the property in question with Khatedars on 30.4.1975, 25.3.1978 and 25.3.1981 after the notification under Section 4 and declaration under Section 6 had already been made. No sale-deed has been executed in favour of the appellant-Housing Society. Though the land stood acquired, however, the Housing Society proceeded to allot the land to its members and they filed reference application under Section 83 of the Jaipur Development Authority Act, 1982 on 17.5.2005 for claiming regularization of their land. The JDA Tribunal rejected the application vide impugned order dated 22.9.2005 against which, the writ petition was preferred. There were certain references sought by individual members, which were also rejected by the JDA Tribunal. However, the orders which were passed by the JDA Tribunal on 20.7.2005 and 21.11.2005 were not questioned, hence, they attained finality. No writ petition against said orders have been preferred. It is pertinent to mention here that in reference application, only regularization of land was sought. There was no whisper in the reference application that acquisition was illegal. On the other hand, it was admitted that the land stood acquired by the State Government for the purpose of extension of Airport at Jaipur. The JDA was raising construction of boundary wall; it was prayed that the same be restrained. As against the order passed by Tribunal, writ petition was filed in which only regularization was claimed. There was no whisper that acquisition was illegal in any manner or acquisition stood lapsed for any reason whatsoever good, bad or otherwise. There was no prayer made either before the Tribunal or, in the writ petition to treat the acquisition as having lapsed. Questioning the order passed by Single Bench, Shri R.K. Agrawal, learned senior counsel appearing on behalf of appellant Housing Society has urged at length at the cost of repetition and with full vehemence on his command that the Court should entertain the question with regard to lapse of acquisition as award was not passed within two years from the date of repeal of the Rajasthan Land Acquisition Act and the date on which the Land Acquisition Act, 1894 came into force in the State of Rajasthan i.e.24.9.1984. The award was passed in the year 1988. Thus, the acquisition stood lapsed in view of Section 11A. He has relied upon the decision of the Apex Court in Rajendra Singh Verma (Dead) through LRs and Ors. Vs. Lieutenant Governor (NCT of Delhi) and Ors. (2011) 10 SCC 1 to contend that being pure question of law, new point can be permitted to be raised in the intra-court appeal. He has also relied upon the decision of the Apex Court in Shehla Burney (Dr.) and Ors. Vs. Syed Ali Mossa Raza (Dead) by LRs and Ors. (2011) 6 SCC 529 in this regard. Learned senior counsel has also addressed us on the issue of jurisdiction of this Court under Articles 226 and 227 of the Constitution of India and submitted that this Court can entertain the argument which has been raised under writ jurisdiction for the first time and in this regard, he has relied upon the decision of the Supreme Court in Ramesh Chandra Sankla and Ors. Vs. Vikram Cement and Ors. (2008) 14 SCC 58. He has further submitted that when the award was not passed within limitation, the acquisition stood lapsed. This Court is bound to take notice of the aforesaid fact and grant relief to the appellant-Society by directing regularization of the land in question, he has relied upon decision of the Supreme Court in Raghunath Rai Bareja and Anr. Vs. Punjab National Bank and Ors. (2007) 2 SCC 230 and another decision of the Apex Court in Damodaran Pillai and Ors. Vs. South Indian Bank Ltd. (2005) 7 SCC 300. He also submitted that in case award has not been passed within the time frame envisaged under Section 11A of the Land Acquisition Act, 1894, the acquisition stands lapsed. For this proposition, he has relied upon decision of the Apex Court in Girnar Traders Vs. State of Maharashtra and Ors. (2007) 7 SCC 555, R. Indira Saratchandra Vs. State of Tamil Nadu and Ors. (2011) 10 SCC 344, Rajinder Singh Bhatti and Ors. Vs. State of Haryana and Ors. (2009) 11 SCC 480 and Kunwar Pal Singh (Dead) by LRs Vs. State of U.P. and Ors. (2007) 5 SCC 85.
(3.) ON the other hand, Shri N.K. Maloo, learned senior counsel appearing on behalf of the respondent- JDA has submitted that the prayer made by the appellant before the JDA Tribunal was for regularization of the land. Land acquisition has not been questioned in any manner whatsoever nor, it was averred that acquisition stood lapsed for any reason. This ground has also not been taken in the writ petition. The question cannot be said to be pure question of law. He has also submitted that the question of regularization itself came up for consideration before the Apex Court in JDA Vs. Vijay Kumar Datta 2011(12) SCC 94. He also submitted that transactions involving transfer of land after the issue of notification under Section 4 were nullity. He has also submitted that the appellant was mere agreement-holder and in view of clear provisions contained in the Rajasthan Lands (Restrictions ON Transfer) Act, 1976, no agreement could have been entered into as Section 4 of the Act of 1976 clearly imposes restriction on transfer of lands in relation to which acquisition proceedings have been initiated except with the prior permission of the competent authority in writing. There can be no sale, mortgage, gift, lease or otherwise of any land or part thereof situated in the State of Rajasthan. Thus, agreements to sale in the present matter are illegal. It was further submitted that no sale deed has been executed so far. Merely on the basis of agreement, it was not open to the Housing Society to file even reference before the JDA Tribunal and much less to question the legality of acquisition proceedings which stood concluded in the year 1988 for which acquisition proceedings were initiated way back in 1969. At no point of time, appellant has questioned legality of the acquisition proceedings. Now this question cannot be raised for the first time in the intra-court appeal. Though we have been addressed at length by Shri R.K. Agrawal, learned senior counsel appearing on behalf of the appellant, but we find that it was totally misadventure on the part of the appellant to raise the question of validity of land acquisition proceedings for the first time in the intra-court appeal. It is apparent that challenge to the acquisition proceedings was made by the original Khatedar by way of filing Writ Petition No.1446/74. The said writ petition was dismissed on merits on 8.5.1975 against which intra-court appeal was preferred, which was also dismissed by this Court. This fact is not in dispute. In case award was not passed within period of limitation, it was open to question the same on this ground but, no writ petition was ever filed questioning that the award was not passed within the period of limitation of two years as provided in Section 11A of the Land Acquisition Act, 1894. We have gone through the reference application filed before the Tribunal as also the writ petition which was filed before the Single Bench with the help of counsel for the appellant. We find that there is no whisper with respect to lapse of the land acquisition proceedings in the reference application filed before the JDA Tribunal or, in writ petition filed before the Single Bench. Land acquisition was not even questioned on any ground whatsoever good, bad or otherwise. On the other hand, candid admission was made in reference application that land stood acquired, its validity was not put in issue and only regularization was being sought by the Society. It does not lie in the mouth of the appellant-Society to contend for the first time in the intra-court appeal that question of lapse of acquisition proceedings in view of Section 11A of Land Acquisition Act, 1894 is a pure question of law; it is not pure question of law. There were several litigations which were filed and there was interim stay also on passing of the award as mentioned in the award itself. When interim order was vacated and how many injunctions were there, all these aspects could have been looked into, in case this question would have been raised by the appellant in the writ petition or, in the reference application filed before the Tribunal. Section 11A of the Act of 1894 itself provides that while computing the period of limitation, the period during which acquisition proceedings remained stayed by order of the Court, shall be excluded. Thus, the question raised that acquisition stood lapsed cannot be said to be pure question of law as it depends on facts, rather it was purely mixed question of fact and law. It was necessary to raise this issue in reference application or, in the writ petition, which has not been done. We find that no such submission can be raised in the intra-court appeal, that too, belatedly. It is clearly an afterthought and impermissible challenge in the facts of the case. We have no hesitation in rejecting the submission that this question be permitted to be raised now in the intra-court appeal without pleading and challenge to acquisition proceedings in the reference/writ petition. ;