- (1.) AS identical questions of law are involved in these cases it would be convenient to dispose of these cases by one common order.
(2.) ACCORDING to the petitioners, they are residents of village Moongaska in the vicinity of City of Alwar. Acquisition proceedings of 189 Bighas 10 Biswas of land was taken by the respondents and in pursuance thereof a notification under Section 4 of the Rajasthan Land Acquisition Act (hereinafter referred to as 'the-Act') was issued on 11th March, 1981. A notification dated 7th August, 1981, published in Rajasthan Gazette Part 1 (Kha) dated August 13, 1981, was issued under Section 6 and 17 (4) of the Act. ACCORDING to the petitioners they were served with individual notices under Section 9 of the Act when they came to know about the land acquisition proceedings. The acquisition proceedings are challenged mainly on the ground that: (i)- Notification under Section 4 (1) was not published in accordance with requirement of section 45 of the Act nor was it served on the petitioners; (ii)- No notice under Section 4 (5) was issued and put by the competent authority nor such notice was served on the petitioners; (iii)- the State Government did not apply its mind on the question of urgency and dispense with the provisions of Section 5a without any basis; (iv)- The State Government did not apply its mind to the question whether the land was waste or arable; (v)- the acquisition proceedings were started in the year 1971 also for the purpose of Rajasthan Small Scale Industries Corporation, but after objections were raised by aggrieved persons, the same were dropped on 31st August, 1971 and therefore, there was no public purpose involved in the matter. The State Government as well as the Rajasthan Industrial Investment and Development Corporation (RIICO) for whose use the lands are acquired, filed replies and took an identical stand that the land was needed for extension of industrial area at Alwar and RIICO made request for immediate action of acquiring the land and handing over the same to it. The State Government, therefore,issued a notification dated 8th August, 1981 after applying its mind to the urgency of the matter and the arable nature of the land. The notification under section 4 (1) was issued on 11th March, 1981 and a public notice was also given in accordance with Section 4 (5) of the Act. A copy of the proceedings as recorded in the daily diary of the Patwari has been submitted to prove the compliance of public notice in accordance with Section 4 (5) of the Act. The land was admitted to be agricultural land and used for cultivation by the petitioners themselves as such the arable nature of the land was undisputed. It was also pleaded that the land in dispute had already vested in the State of Rajasthan and the State had thereafter handed over the possession of the land in dispute to RIICO on 2nd September, 1981 and since then RIICO was in possession of the land in question. The petitioners had no right to make any construction over the agricultural land and as such constructions, if any, raised over the agricultural land being unauthorised, the petitioners could not derive any advantage of such unauthorised constructions. It was also pleaded that the petitioners had not come with clean hands and obtained interim stay orders by mis-stating the facts. The petitioners did not correctly reproduce the impugned notification under section 17 (A) and Section 6 of the Act. A very material portion with regard to clear mention of dispensing with the inquiry under Section 5a in the notification had been omitted by the petitioners. The petitioners also misstated and misrepresented about the factum of possession. Even they were dispossessed on 2nd Sept. , 1981, but still they mentioned that they were in possession of the lands in question. It was also pleaded that various questions raised in these writ petitions were disputed questions of fact and as such the writ petitions deserve to be dismissed on this ground alone. It was also pleaded that in answer to the notice under Section 9 of the Act, the petitioners have claimed compensation for acquisition of land, construction, standing crop etc. , and as such they were estopped from challenging the acquisition proceedings now. I shall deal with the grounds taken by the petitioners ad serletum. GROUND NO. 1: Under this ground it is contended by the learned counsel for the petitioners that it was categorically stated in the writ petitions that no notice was served under Section 4 (1) of the Act read with Section 45 and that there had been no publication of the notice as required by the provisions of Section 45 of the Act. It was also pleaded specifically that no notice under Section 4 (5) had been issued nor received by the petitioners. The respondents in reply to these averments have clearly stated that notice under Section 4 (1) was published and in support of this a copy of the daily diary of the patwari has been placed on record as Annexure R/2. Prima facie there is no reason to disbelieve the stand taken by the respondents that notice under Section 4 (1) was published which finds support from Annexure R/2. That apart, it has already been decided by a Division Bench of this Court in D. B. Civil Special Appeal No. 149/1975-Moti Chand & others v. State of Rajasthan and others, decided on January 12, 1981, that so far as the publication of an order under sub-section (1) of Section 4 is concerned, it is only for the benefit of an officer to enter upon or into any land in such locality for survey, to dig or bore into sub-soil to set out boundaries, to mark levels etc. and to do other acts necessary to ascertain whether the land was suitable for such public purpose. This provision cannot be said to be mandatory. The Scheme of Section 4 under the Rajasthan Land Acquisition Act after the substitution of Section 2 of Rajasthan Act No. XXII of 1966 was entirely different. The procedure contained upto sub-sec. (4) of Section 4 of the Rajasthan Act was concerned, it was entirely for the benefit of the officers subordinate to the Govt. The provision under clause (g) of sub-sec. (1) of Sec 4 was also for the purpose of inquiry to ascertain the number of the persons interested in such land. The stage of filing objections under Section 5-A of the persons interested only arrives when a notice has been given under sub section (5) of Section 4 of the Act. Section 5a itself makes a mention that any person interested in any land in respect of which a notice has been given under sub-section (5) of Section 4 is being proposed to be acquired for a public purpose or for a company may, within 30 days, after the service of the public notice, in the manner provided under Sec 4g object to the acquisition of the land or of any land in the locality as the case may be. Thus, if there was any non-compliance of the order issued under sub-section (1) of Section 4 in the matter of publication in accordance with the provision of sub section (4) of Section 45 it was merely delegatory and not mandatory. The aforesaid view also finds support from a bench decision of this Court in M/s. Rajasthan Udyog Limited v. State of Rajasthan (1 ). The petitioner as such can have no grievance for any non-compliance of the notification under Section 4 (1) if the same for arguments sake has not been published strictly in compliance with Section 4 (5) and Section 48 of the Act. The purpose of issuing this notification is merely to give a notice to the owner of the land that the authorised officer along with his servants and workmen shall enter his premises for performing the functions of survey etc. mentioned in sub-section (1) of Section 4, of the Act. The State Government in case of large chunk of land may be satisfied about its suitability for acquisition without any survey of the land. Thus, I find no substance at all in the ground raised by the petitioners. GROUND No. 2: This ground is already covered by my decision given for ground No, 1. GROUND No. 3:
(3.) THIS is the ground on which a serious controversy has been raised by the petitioners. It is contended that in the instant case the State Government has not been able to disclose the circumstances which necessitated climination of an inquiry under Section 5a of the Act. The respondents have neither disclosed the nature of the industries, nor the circumstances which have rendered it so imperative to take immediate possession of the land. It is submitted that the mere fact that the land was required for establishment of industries and extension of industrial area could not have formed the basis for invoking the powers under Section 17 (4) of the Act. Neither the need to establish industry nor the need to expend the existing industrial area can came into existence over night. By the very nature of things, the requirement for the same, if any, must have gradually emerged and there was no reason as to why the Government did not initiate the acquisition proceedings well in advance. The urgency should be of such a nature as to avoid even the minimum requirement of hearing and could only be the result of some unexpected extraordinary situation e. g. floods etc. or of a nature where the scheme was a time bound one and by lapse of time the object of such scheme would become nugatory and infructuous. Strong reliance is placed on the following observations, in Motian v. State of Rajasthan (2) where it was observed as under: " In view of this, with due respect to the view taken by the Division Bench of this Court in the above case, I have got no hesitation in holding that the question regarding the urgency under S. 17 (4) (sic) of the Act, is not immune from judicial review and once it is challenged properly, this Court has ample jurisdiction to make limited probe into the matter as per limits set up by the Supreme Court in the above case. In fact, in the present bunch of cases, no probe even is required because the only requirement of acquisition to industrial development and that too for providing land first to the corporation (R. I. M. D. C.), which itself in terms would allot the land, later on, to industrialist and when the same is required to be done. Such a nature of requirement simplicitor without anything more live like time bound programme, can never be treated to enough for dispensing with and depriving a citizen of his legal right of a summery inquiry under S. 5-A of the Act. THIS is a sort of right of hearing, which has been put at the highest pedestal on the principles of natural justice, in the various cases of the Supreme Court in Ramana Dayarma Shetty vs. The International Airport, Authority of India, AIR 1679 SC 1628 and Maneka Gandhi vs. Union of India AIR 1978 SC 597. I have got no hesitation in holding that invoking of urgency clause under Section 17 (4) of the Act was wholly misconceived and cannot be sustained" Reliance is also placed on Dora Phalauli vs. State of Punjab (3), The State of Punjab vs. Gurdial Singh (4), Swadeshi Cotton Mills vs. Union of India (5), Natwar Lal Jarambhai Patel vs. State of Gujarat (6) and Yasho Mathu Mahajan vs. The State of Maharashtra (7 ). On the other hand, it was contended by Mr. Lodha, learned counsel for RIICO, that it was clear from the notification that the Government was satisfied that the land in question was urgently needed and dispensed with the inquiry under Section 5a of the Act. The Sand in dispute along with other land was urgently needed for establishment of industry as well as extension of industrial area already in existence near the disputed land. Because of the pressing demands of the entrepreneur even the delay of few days was coming in the way of industrial development and expension of Matsya Industrial Area, Alwar and complete facts and circumstances were considered by the Government right upto the Chief Minister and it was ultimately decided to invoke the powers under Section 17 (4) of the Act. It is further contended that the petitioners themselves in rejoinder have placed correspondence which shows that the Government had applied its mind to the urgency of the matter and this Court cannot go into the question of sufficiency of such material. This Court should not strike down the notification for acquisition of land on grounds based on hyper-technicality. The petitioners have not been able to show as to what possible objections they could have reised if opportunity was given to them under Section 5a of the Act and in the absence of any prejudice this Court should not interfere in the subjective satisfaction of the government in such matters. It was contended that the case of Dora Phalauli (supra) was considered by this Court in Ram Nath vs. State of Rajasthan and others SB. Civil Writ Petition No. 1070/1981- decided on July 3, 1981 and the aforesaid case was found to be distinguishable on the ground that the language used in the notification in the Supreme Court case was entirely different from the language used in the notification issued by the Government of Rajasthan in that case. I have given my careful consideration to the arguments advanced by the learned counsel for the parties in regard to this ground. There can be no manner of doubt that in case the impugned notification issued under Section 17 (4) of the Act is held to be valid which dispenses with the inquiry under Sec. 5a of the Act, in that case the necessity of giving a notice under sub-section (5) of Section 4 and the service of the public notice in the manner provided in Section 45 automatically goes away. The notice to a person interested in the land under clause (i) off sub-sec. (5) of Section 4 and a public notice under clause (ii) of the same sub-section is given so that a person interested in the land may file objections to the notice issued under Section 4 of the Act Such objections are heard under Section 5-A of the Act. Section 17 empowers the Government to act in cases of urgency and under sub section (4) of Section 17, the Government may direct that provisions of Section 5a shall not apply and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the order under sub-section (1) of Section 4 of the Act. Thus, under sub-sec. (4) of Sec. 17 if an order is validly issued, the provisions of Sec. 5-A will not apply and automatically the question of serving a notice to the interested persons or service of public notice in the manner provided in Section 45 does not arise. Thus, the main question to be determined is whether the notification issued by the Government under sub section (4) of Section 17 on 7th August. 1981, is valid or not. Learned counsel for the petitioners placed much reliance on Dora Phalauli's case (supra ). In that case the language used in the notification was as under: " Further in exercise of the powers under the said Act, the Governor of Punjab is pleased to direct that action under Section 17 shall be taken in this case on the grounds of urgency and provisions of Section 5-A will not apply in regard to this acquisition. " ;