- (1.) VIDE order dated 25-7-2012 this court had required the respondents to file reply to the writ petition and in view of the judgments of the Hon'ble Supreme Court in case of Kamal Trading (P) Ltd. Vs. State of West Bengal [(2012) 2 SCC 25] and Raghbir Singh Sehrawat Vs. State of Haryana [(2012) 1 SCC 792] it was directed that the petitioners shall not be dispossessed from the property in issue till 6-8-2012. The stay order was thereafter extended from time to time and presently subsists. The Land Acquisition Officer was however allowed to take further proceedings in pursuance to the declaration of the State Government under Section 6 Gazetted on 5-7-2012.
(2.) REPLY to writ petition has been filed both by the State of Rajasthan as also the Jaipur Metro Rail Corporation Limited (herein after 'the JMRC). An application (36161/14-8-12) has been filed by the petitioners and it has been submitted by Senior counsel Mr. Abhay Bhandari appearing with Mr. Vaibhav Bhargava that earlier interim order dated 25-7-2012 be modified and the stay be confirmed in view of the ex facie illegality in acquisition proceedings in the context of judgment of Hon'ble Supreme Court in the case of Kamal Trading (P) Ltd. (supra). It is submitted that this court should eschew the circumstance of illegal land acquisition proceeding being allowed to continue with the potential of an illegal award being passed which the respondent Land Acquisition Officer is seeking to do. Counsel submits that in the case of Pranita Powerloom Cooperative Society Limited Vs. State of Maharashtra [(2009) 12 SCC 652], the Hon'ble Supreme Court has held that when an obvious illegality attaches to acquisition proceedings, the petitioners challenging such proceedings should not be put through rigmarole of further proceedings thereunder. Counsel on behalf of the petitioners further submits that the reply to the writ petition filed by respondents does not provide any escape to the respondents from the law enunciated in the case of Kamal Trading (supra). Counsel submits that the legal position obtaining with regard to manner of consideration of objections under section 5A of the Land Acquisition Act, 1894 (herein after 'the 1894 Act') has been well delineated in the case of Kamal Trading (supra) and it is imperative that the objections filed by the "person interested " be considered with due application of mind by the Land Acquisition Officer. Counsel submits that the Hon'ble Supreme Court has held that when objections filed are not addressed as required in law, they would be of no avail in facilitating the government's satisfaction for a Section 6 Notification and the illegality of the making of recommendation by the LAO without addressing the objections would attach to a Section 6 Notification made thereon. It is submitted that a bare look at the purported recommendations under Section 5A of the 1894 Act made qua the petitioner's objections indicates that the Land Acquisition Officer has merely done a copy and paste job. Counsel submits that the right under section 5A of the 1894 Act of the person interested has been held to be akin to a fundamental right by the Hon'ble Supreme Court in case of Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai [(2005) 7 SCC 627] and such right is zealously protected by Courts on a close scrutiny of the manner of dealing with and disposing of the objections filed by the Land Acquisition Officer. It is submitted that in the instant case the objection have in fact not been substantively addressed at all except on two minor preliminary aspects of the matter. Counsel submits that contrary to the enunciation of law by the Hon'ble Supreme Court in Hindustan Petroleum Corporation Ltd. (supra) a bare look at the report/ purported recommendations of the Land Acquisition Officer indicates that para Nos. 1 to 14 of the purported recommendations are not only identical but a verbatim reproduction of para Nos.2 to 20 of the reply to objections filed by the JMRC. Counsel submits that the non consideration of the objections is also conclusively established from the concluding paragraphs of the purported recommendation, wherein the Land Acquisition Officer has recorded as under:- It is submitted that a similar situation of non consideration of objections obtains in the order-sheet dated 18-5-2012 drawn by the Land Acquisition Officer, on the relevant file wherein it has been recorded thus: Learned Senior counsel has further submitted that land acquisition proceedings apart from being vitiated by non application of mind to objections filed under Section 5A of the 1894 Act are also liable to be set aside on the ground that no opportunity of hearing as mandated under Section 5A of the 1894 Act was provided. Reliance has again been placed on the case of Kamal Trading (P) Ltd. (supra) on the factual aspect of this argument. It is submitted that the matter was listed before the Land Acquisition Officer on 9-3-2012, on which date the JMRC filed reply to the objections filed by the petitioners. On the request of counsel for the petitioners opportunity to file rejoinder to the reply filed by JMRC was given and the matter was fixed to 9-4-2012. Counsel submits that this court should consider the fact that the next date 9-4-2012 was fixed only for filing of rejoinder to the reply filed by JMRC. It is submitted that on the matter coming up before the Land Acquisition Officer on 9-4-2012, and though admittedly neither counsel for the petitioners was present nor rejoinder to reply of JMRC was filed, the Land Acquisition Officer ought to have fixed a specific date for hearing of the objections. On the contrary the Land Acquisition Officer without fixing any future date abruptly closed consideration of the objections and required the file to be put up before him only at the time of sending recommendations to the State Government. Learned Senior Counsel submits that the action of the Land Acquisition Officer in abruptly closing the matter on 9-4-2012, when the matter was fixed only for filing the rejoinder to the reply filed by JMRC, without any opportunity of hearing to the petitioners on a date fixed for the purpose, tantamounts to a denial of the right to hearing, which by itself also vitiates purported recommendations made by the Land Acquisition Officer on 18-5-2012. Per contra, Mr. G.S. Bapna, learned Advocate General and Mr. R.N. Mathur, learned Senior Advocate with Mr. Sandeep Pathak for JMRC would submit that the recommendations by the Land Acquisition Officer are well considered. It is submitted that the Land Acquisition Officer has specifically considered the objections of the petitioners with regard to name of the petitioner Alok Kotahwala not being shown in the notification under Section 4 of the 1894 Act, as also with regard to lack of jurisdiction of the Land Acquisition Officer to have surveyed the land under acquisition and hear the objections. It is submitted that the Land Acquisition Officer has given a specific finding as to why said objections were not sustainable. With regard to other objections raised by the petitioners by way of Section 5A of the 1894 Act, it is submitted that the Land Acquisition Officer has recorded his consent/ agreement with regard to the public purpose for the requirement of land under acquisition for the JMRC and this by itself should be treated as a consideration and rejection of objections filed by the petitioners, with the requisite application of mind. It is submitted that the use of words "Vichar Nahi Kiya Jakar " cannot be construed as if the objections in issue under Section 5A of the 1894 Act were not considered. With regard to allegations of denial of opportunity of hearing by the Land Acquisition Officer, Mr. R.N.Mathur, learned Senior Advocate submitted that the petitioners having abstained from the proceedings before the Land Acquisition Officer on 9-4-2012 tantamounted to waiver of the right to be heard. It is submitted that as land acquisition proceedings are administrative in nature, there was no requirement for fixing a specific date for hearing the objectors, each date being the date when hearing would be done. He submits that the petitioners themselves having abstained from appearing before the Land Acquisition Officer cannot now contend that they have been denied an opportunity of hearing.
(3.) RELIANCE is placed on Aircraft Employees' Housing Cooperative Society Ltd. Vs. Secretary, Rural Development and Panchayat Raj Government of Karnataka [(1996) 11 SCC 475] and Dhananjay Sharma Vs. State of Haryana [(1995) 3 SCC 757] to contend that in a situation where an opportunity of hearing is lost for reasons attributable to the objecting party, the Hon'ble Supreme Court has held that it cannot tantamount to denial of natural justice as warranted under Section 5A of the 1894 Act. Mr. Bapna, learned Advocate General further submits that any error in considering the objections under Section 5A of the 1894 Act in not addressing the objections with requisite application of mind should not affect the acquisition proceeding adversely in view of the fact that the purpose of acquisition of land in issue is for JMRC which is a infrastructure project. He submits that this court should overlook the illegality as alleged in view of public project purpose of acquisition. RELIANCE is placed on para 8 of the judgment of Hon'ble Supreme Court in the case of Ramniklal N. Bhutta Vs. State of Maharashtra [AIR 1997 SC 1236]. Having heard counsel and having perused the order dated 18-5-2012 passed by the Land Acquisition Officer deciding the objections under Section 5A of the 1894 Act, I am prima facie of the view that as the counsel for the "persons aggrieved " himself the objectors had absented themselves from appearing on the date fixed by Land Acquisition Officer on 9-4-2012, no ground can be agitated with regard to alleged denial of hearing to the petitioners. The proceedings before the Land Acquisition Officer are in the nature of administrative proceedings and not regular proceeding as in a court or before quasi judicial authority. The procedures as applicable to courts or quasi judicial authorities such as fixing of date in matters before them for specific purposes cannot be implemented in respect of proceeding before the Land Acquisition Officer. In my considered opinion the matter can be considered on any date fixed in the process of the filing of objections under Section 5A of the 1894 Act by the Land Acquisition Officer. The 1894 Act provides for a year's limit between the issue of last of the publication under Section 4 of the 1894 Act and the publication of notification under Section 6 of the 1894 Act. Delay is thus to be avoided at all costs lest acquisition proceedings are lost to machination of adjournments. It is the duty of the "person interested " to appear on each occasion during the proceedings or obtain short adjournments for reasons disclosed in writing by way of a formal application. Acquisition for public purpose as a matter of fact is of great importance and objectors ought to have made available themselves or through counsel on every date fixed in the process, and their absence more particularly without due notice or any request cannot be utilised subsequently to contend denial of natural justice. In view of the enunciation by the Hon'ble Supreme Court in the case of Dhananjay Sharma (supra) and Aircraft Employees Housing Cooperative society Ltd. (supra), I find that the petitioners in the facts of this case cannot agitate the ground of not being heard and denial of principles of natural justice. However with regard to consideration of objections filed by the petitioners, I am of the view that a bare look at the recommendations made by the Land Acquisition Officer is indicative of the fact that there is patent non consideration of the substance of the objections even though the land Acquisition Officer has indeed addressed peripheral objections with regard to the name of Alok Kotahwala not being shown in the notification under section 4, and held that in view of the fact that as per revenue record then obtaining his name had not been mutated leading to exclusion of his name in the notification under Section 4 of the 1894 Act entailing no illegality. With regard to lack of jurisdiction, the Land Acquisition Officer has addressed and held thereagainst in a manner as would be required in exercise of power under Section 5A of the 1894 Act. However on the substance of the objections, the consideration is wholly absent and in fact it has been recorded by the Land Acquisition Officer that in view of requirement for acquisition of land in issue for the public purpose there was no need to consider the objections. The relevant para is reproduced for emphasis as under:- ;