SHARMA, J. - (1.) IN all these five writ petitions challenge is made to the Notifications dated July 1, 2005, and September 15, 2005 respectively issued under Section 4 and Section 6 read with Section 17 (1) (4) of the Land Acquisition Act, 1894 (for short Acquisition Act) as well as Notice under Section 9 (1) (2) and subsequent proceedings under the said Act.
(2.) FOR convenience facts of Writ Petition No. 7957 of 2005 are taken into consideration. The petitioner is this writ petition averred that land bearing Khasra No. 1333 and 604 was purchased by him in the year 1987 by a registered sale deed. The Tehsildar vide order dated September 1, 1987 mutated the said land in favour of the petitioner and vide permission April 24, 1990 the petitioner constructed a residential house, well and boundary wall of 5 ft. around the whole land. The State of Rajasthan issued a Notification dated July 1, 2005 under Section 4 of the Acquisition Act acquiring the land of the khatedars in village Kukas for the purposes of Rajasthan Industrial Development and Investment Corporation Ltd. (in short RIICO ). The land of the petitioner proposed to be acquired was 0. 52 hectares out of total area of 0. 84 hectares. After the petitioners filed objections on July 29, 2005, the Land Acquisition Officer (for short `lao') proceeded with the matter and fixed August 24, 2005, August 30, 2005, September 9, 2005 and September 16, 2005 for hearing but after the Notification under Section 6 read with section 17 (1) and (4) of the Acquisition Act issued by the State Government on Sept. 15, 2005 the LAO declined to decide the objections filed by the petitioners. According to the petitioners the Notification did not denote any urgent need and it was issued without making compliance of sections 5a and 6 of the Acquisition Act. The respondents 1 & 2 filed joint reply to the writ petition whereas respondent No. 3 submitted separate reply. The respondents 1 & 2 admitted issuance and publication of Notification dated July 1, 2005 under Section 4 of the Acquisition Act. Filing of objection by the petitioner and issuance of Notification under Section 17 (1) (4) and Section 6 on July 15, 2005 was also admitted and it was stated that the Notification was published on September 16, 2005 in two daily news papers viz. Mahka Bharat and Dainik Navjyoti. It was denied that the purpose of the Notification was not to provide hearing to the petitioner. According to respondents the industrial area earlier set up by RIICO in village Kukas had saturated and there was heavy demand of industrial plots in the said area being situated in proximity to the National Highway No. 8 leading to Delhi. Therefore considering the urgency of the situation and after due application of mind the State Government decided to invoke the urgency clause provided in Section 17 (4) of the Acquisition Act dispensing with the requirement of hearing under Section 5 A of the said Act. The respondent No. 3 in the reply stated that the Jaipur Development Authority has already taken steps for change in the land use indicated in the Master Plan for the area in question and in this connection issued a Notification under Section 25 (3) of the JDA Act on September 23, 2005. An affidavit has been filed stating that on the one hand the petitioner has been prosecuting the writ petition and on the other hand he has submitted his claims before the LAO in response to the notice under Section 9 f the Acquisition Act claiming Rs. 4,14,39,218/ -. He has also voluntarily participated in the process of determination of compensation, but because of the interim order passed in the present matter, the LAO could not proceed to determine the compensation. In other matters, the estimated compensation to the extent of 80% in terms of Section 17 (3-A) has been determined and deposited in the civil Court. The land of Charagah which the petitioner is citing as an alternative land is not only not adjacent to the existing industrial area, but also far away from the National Highway and therefore would have no utility for the purpose of expansion of the existing industrial area. I have pondered over the rival submissions and scanned the material placed for my perusal. Impugned Notification and Notices have been called in question by the petitioners on the following grounds: (a) The abrupt application of urgency provisions during the hearing of objections under Section 5 A is a malafide step on the part of the Non-petitioners. There was no urgency in the acquisition proceedings and the urgency provisions have been invoked only in order to grab the land of the petitioners without making any payment or after making meagre payment under Section 17 (3a) of Acquisition Act. (b) The State Government has not applied its mind to the urgency provisions. The RIICO made request to the State Government to apply urgency provisions without supplying any material on the basis of which urgency provisions could be applied. Without there being any reason to apply urgency provisions, the application of urgency provisions are void and contrary to the provisions of the Acquisition Act and the Constitution. The application of urgency provisions in the present case suffers from lack of consideration and malafide. (c) Without receiving any report under Section 5a from the LAO, the urgency provisions should not have been applied. The LAO had not filed any report under Section 5 A of Acquisition Act to the State Govt. not any request was made by the RIICO to the LAO and as such in the absence of report under Section 5a suggesting the application of urgency provisions, the acquisition proceedings is contrary to law. (d) By application of urgency provisions in the acquisition proceedings the valuable rights of the petitioners as provided in Section 5a of the Acquisition Act have been violated. The provisions of Section 17 (4) have not been applied while issuing Notification under Section 4 of the Acquisition Act and the petitioner had a right to be heard in support of his objections. The LAO instead of giving hearing went on adjourning the case and did not give him a hearing and as such the acquisition proceedings deserve to be quashed and set aside. (e) The land is not acquired for any public purpose but is being acquired for obliging an industry namely Hero Honda Company with which the officials of the RIICO have colluded so as to draw benefit out of the same. The provisions of Section 3 (f) defines public purpose. The land acquired for RIICO may be a public purpose but compliance of Sections 3 (f) (vi) (vi) of the Acquisition Act has to be made. The prior approval of the local authority is a must before approving scheme for acquisition of land. (f) The publication of notification under Section 6 read with Section 17 (1) (4) in the news papers which has got no circulation in villages Kukas and Amer, is a deliberate malafide action on the part of the non-petitioners. (g) In the Notification of Section 6 read with Section 17 (1) and (4) of the Acquisition Act, urgency has not been shown and as such the urgency provisions could not have been applied, as such the Notification is bad in law. (h) The LAO had not made any survey of the land before the publication of the Notification under Section 6, as such the land in being acquired without following due process of law as is required by Section 4 (2) of the Acquisition Act, as such the same is against the provisions of Article 300 A of the Constitution. (i) As a consequence of acquisition proceedings the petitioners shall be deprived of their livelihood which is not permissible under law. The petitioners cannot be deprived of their livelihood under the cover of acquisition proceedings. (j) As a result of 74th Constitutional Amendment Act, 1992 the matter of planning has been entrusted to the Metropolitan Planning Committee through Article 243 ZE of the Constitution and to the District Planning Committee through Article 243 ZD of the Constitution. The RIICO cannot made plan on its own. The making of the plan by RIICO is ultravires to Constitution for which acquisition can be made. (k) Village Kukas comes under the domain of JDA, as such the RIICO has to obtain land from the JDA. The land has been first acquired by the JDA and then if the JDA deems it fit according to Master Plan allot the land to RIICO as per the provisions of Section 17 of the JDA Act. The State Government cannot acquire the land on the direct request of RIICO in the area of JDA, which causes anarchy in development work. (l) In the Master Plan of 2011, the area of village Kukas has been reserved for ecological purposes and shown as a rural belt i. e. as a green belt. The green belt cannot be annihilated by acquiring the land for RIICO and establishment of Industrial area. The acquisition of land is thus in contravention of the Master Plan. (m) The land of the petitioners is just adjacent to National Highway No. 8. The constructions over the said land have to be made with due permission of National Highway Authority. Such permission has not been taken by the RIICO. As such the acquisition proceedings is bad in law.
(3.) IN support of the aforesaid contentions learned counsel for the appellants placed before me certain decisions of Hon'ble Supreme Court to which I will refer at an appropriate stage in the latter part of this judgment. Repelling these contentions learned counsel appearing for the State of Rajasthan canvassed that since the land had to be acquired for the purpose of planned industrial development, urgent situation was implicit in such acquisition proceedings and if section 5a inquiry was not dispensed with, years would have passed before section 6 notification could have been issued. It was also submitted that the material relied upon by the State authorities for dispensing with inquiry under Section 5 A of the Acquisition Act was quite relevant and this Court would not sit in appeal over the subjective satisfaction of the authorities in this connection as it is well settled that if subjective satisfaction for invoking section 17 (4) is found to be based on relevant material it cannot be challenged in a Court of law by requesting the court to reappreciate such evidence. It was next contended, placing reliance on some of the judgments of the Apex Court, to which I will make a reference hereinafter, that acquisition for the planned industrial development would entitled the authorities to invoke urgency provisions of Section 17 (4) of the Acquisition Act. In a written note submitted on behalf of State of Rajasthan and RIICO, facts reflected from the Government record and details of submissions have been incorporated thus: A. The facts reflected from the Government record: On 14. 8. 2004/16. 8. 2004 the process of acquisition was initiated in view of the fact that Kukas Industrial Area has saturated and there was a heavy demand from Industrialists for industrial land in the said area. The said initiation was approved at the level of Deputy Secretary (Industries) and the industries Ministry. 2. On 28. 12. 2004 the plans and proposal were re-examined by the Industries Minister and the Minister desired to discuss the matter with Chief Managing Director, RIICO. On 30. 12. 2004 the matter was discussed with CMD, RIICO and considering the fact that the entire proposed land is part of ecological zone, it was decided to approve the acquisition subject to the JDA clearance, de-notifying eco-zone. 3. Thereafter from 30. 12. 2004 to 13. 6. 2005 i. e. For about six months the matter was processed and scrutinized at various levels and various aspects were repeatedly examined specially in the context of ecological zone and the process of change from ecological zoned to industrial area was also initiated. 4. It was on 14. 6. 2005 i. e. after a time span ob about eight months from the date of initiation of the process for acquisition of land for expansion of industrial area that the Deputy Secretary, Industries (I) took note of the interest shown by M/s. Hero Honda and other big companies to establish industrial unit in Kukas. In view of the importance of the land to RIICO and to State Government it was considered to issue notification under Section 4 of the Land Acquisition Act. It was also decided to pursue with the Commissioner, JDA for change in land use. The Commissioner (Investment and NIR's) observed that Bureau of Investment Promotion (BIP) has been pursuing hero Honda for setting up their third manufacturing unit in Rajasthan. The financial package for the company has been negotiated by the Finance Department which was sought to be presented to BIDI. It was also observed that the company has almost made up its mind on the location. It was observed that in order to ensure that the land is made available in the shortest possible time a committee is to be constituted under the chairmanship of the Chief Secretary, and the other members would be Principal Secretary, Industries, Principal Secretary, Urban Governance, Principal Secretary Revenue CMD, RIICO, JDC and ICP VIP. The committee was appointed to consider the issue pertaining to demarcation of the land, urgency acquisition, cost of land to the company, modalities of the transfer of the land etc. The Principal Secretary examined the urgency provision and recorded that industrial area at Kukas is saturated and that there is heavy demand of industrial plots in the Kukas Industrial Area and therefore, the RIICO requires this land urgently. Further in view of the request made by the Managing Director, RIICO, Principal Secretary proposed to undertake exercise of the powers conferred upon State Government under sub section 4 of Section 17 of the land Acquisition Act, it was directed that the provisions of Section 5 A of the Land Acquisition Act will not be made applicable in the matter. It was also proposed that a Notification under Section 6 (1) of the Land Acquisition Act be issued to the effect that land is needed for a public purpose. The Chief Secretary, Industries and the Industries Minister approved the said process and the Principal Secretary, Industrial Department re-examined the matter. After a threshold scrutiny of the entire matter, scanning of the materials on record collected and following the due process provided under law the Government after duly applying the mind on 15. 9. 2005 proceeded to issue a notification under Section 6 read with Section 17 (1) & (4) of the Land Acquisition Act 1894 for acquiring the aforesaid land. The records have already been submitted before this Hon'ble Court. B. Other submissions: (i) The Government was having sufficient material before it for invoking the provisions of Section 4, 6 and 17 (1) and 17 (4) of the Act of 1894. The Government after due application of mind reached to the conclusion of invoking the provisions of urgency. Acquisition proceedings was initiated in view of the fact that the Industrial Area had become saturated and there was a demand by industrialist for industrial area. The State Government being aware of the demand and in view of the industrial growth of the State, sought to initiate acquisition proceedings. It is relevant to detail out here that it was not Hero Honda who wanted to set up an industry here but it was the State who keeping in view of the Public Purpose, Public Interest, the Global Development, Economic Growth, Employment Avenues and the Industrial Growth of the State proceeded to purpose Hero Honda to set up an industry in Rajasthan. Hero Honda come into picture in June, 05 only when the interest was shown by them for establishing their unit in Kukas. As stated earlier the Government after due application of mind and only after consideration of the entirety of the situation to the effect that the industrial area earlier set up by RIICO in Kukas has saturated and there was heavy demand of industrial plots in Kukas Industrial Area, reached to a decision that the RIICO required the same rightly for expansion of existing industrial area. The notifications issued under sections 4 and 6 for land acquisition was issued for the public purpose of expansion of industrial area. For expeditious completion of the proposal of acquisition for industrialization purpose notifications under Section 17 (1) and (4) were issued and urgency provisions were invoked. (ii) RIICO is a Govt. corporation which is responsible for the growth of industrialization in the State of Rajasthan. The land is being acquired for RIICO for the purpose of industrial expansion and thus there is a clear and specific public purpose for the present acquisition. (iii) It is stated that industrial projects and industrial developments are possible only when there is initiative coordination, and participation on the part of both the private entrepreneurs as well as the governmental agencies. In the present matter Government did nothing wrong in seeking to promote industrialization in the State and realizing the need to expand the Industrial Area in order to cater the need of private entrepreneur in terms of their policy of industrialization growth. At this stage it is relevant to submit about the Hero Honda Project regarding which much hue and cry has been raised by the petitioners. The Project is primarily involved in manufacturing and assembly of two and three wheeler products. The project shall include setting up of ancillary units machining phase, assembly lines R & D and testing facilities training centre and other infrastructure required for operations alike warehouses, stockyard, test tractors, offices, housing facility, power generation plant etc. committed to implement suitable environment management program and intended to implement environmental management systems. The initial expected employment (direct and indirect employees) in over 1000 people. In other projects in other States they have provided employment to 33000 persons. The total proposed investment in the project would be Rs. 300 crores. Thus the project will ultimately bring employment to about 30000 persons and will benefit the public at large. (iv) The petitioners in the writ petitioners have failed to submit any specific pleadings or any material documents so as to support their reckless, baseless allegations with regards to the non-application of mind on the part of the Government authority. The Court cannot accept oral assertions and bald averments, when there is no material on record to reach to the conclusion that the requirements were not properly assessed by the authorities concerned. It is primarily within the domain of the State Government to decide as to how much extent of land has to be acquired keeping in view the present and future needs. Thus, no fault can be found with the notification on that grounds. Further the Government records submitted to the court clearly for kind perusal during oral arguments, falsifies the allegations raised by the petitioner with regards to the non-application of mind. The reply submitted by the respondents, clearly brings out the stand of the Government. (v) The petitioners have alleged the malafides on the part of the respondents without any specific pleadings. The petitioners have also failed to prove the malafide. The petitioners have raised allegations dehors of the pleadings made. In view of Order 6 CPC, it is submitted that such allegations cannot be considered at all by this Hon'ble Court, in absence of specific pleadings. (vi) (a) The foremost issue is as to whether the land is being acquired for any public purpose. The public purpose has to be seen in context of the purpose stated in the notifications, public purpose as defined under the provisions of Land Acquisition Act and public purpose as interpreted under various judgments passed by the Apex Court. (b) The public purpose as stated in the Notification is as follows: Section 4 For the purpose of expansion and development of Industrial Area for Notification RIICo Section 6 For the expansion of industrial area for RIICO. Notification. (c) It is stated that section 3 (f) of the Act of 1894 provides for the inclusive definition of public purpose. The present acquisition is covered by the clauses (iv) and (iii) of Section 3 (f ). 3 (f) (iv) Provides for the provision of land for a corporation owned and controlled by a State, to be included with the expression of public purpose. 3 (f) (iii) Provides for the provision of land for the planned development of land for public funds and in pursuance of any scheme or policy of Government. In terms of Section 3 (f) (iii) of the Act 1894, the expression public purpose includes the acquisition of land for planned development of land from public funds and in terms of Section 3 (f) (iv) the public purpose includes the acquisition of land for a corporation owned or controlled by the State. (vii) In the present case the acquisition is for expansion of industrial area at the cost of RIICO. The purpose is planned development of industries from public funds. As submitted earlier RIICO has made the payment of substantial amount totaling to Rs. 31. 25 crores and the funds of the corporation are nothing but the funds of public and hence the planned development of land acquired is from public funds which falls within the purview of public purpose. The present acquisition and purpose for which acquisition is sought to be made ic clearly covered under the aforesaid clauses. RIICO is a Government corporation and the industrialization is a part of the planned development in pursuance of the policy of the Government. Thus the public purpose of acquisition satisfies the requirements of public purpose as provided under Section 3 (f) of Land Acquisition Act, 1894. (viii) It is necessary at this stage to point out a few observations relevant to present acquisition proceedings. India has launched upon an ambitious program of an economic advancement in order to make Indian economy competitive in the world market. Our country is anxious to attract direct foreign investment up to the maximum extent and proposes to compete with China economically. It is however, recognized in all sectors that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of industrialization is in dire need of substantial improvement, expansion and modernization. Thus the purpose of expansion of industrial area, providing industrial area to entrepreneur is a public purpose, and is the general interest of the community. (ix) Further with regards to the contention of the petitioners that the land is acquired for Hero Honda it is submitted that the total land acquired is 256 acres and land allotted to Hero Honda is only 100 acres. This makes it clear that the land is not acquired for Hero Honda but is acquired for the expansion of industrial area which is public purpose as held by the Hon'ble Supreme Court in catena of judgments. (x) That since the industrialization was a time bound project and it was necessary for the State to acquire the land urgently since any delay could have effected the industrial growth as other States are always available to the entrepreneurs for establishment. Hence the urgency provisions were rightly invoked. The Hon'ble Apex Court has upheld the validity of invocation of urgency provision even in those cases where the time bound program was not in existence and the projects for which the land was sought to be acquired were long time process. (xi) The petitioners have submitted that the acquisition initiated by the State is for a non government company and hence the Government ought to have complied with the provisions of Chapter VII of the Land Acquisition Act, prior to the acquisition of the land. (xii) It is submitted that the land is never sought to be acquired for Hero Honda as already stated in the above paragraphs. The contention raised by the petitioners is dehors the pleadings and the documents. Since the land has not been acquired for Hero Honda, the provision of Chapter VIi are not at all applicable and the respondents were not required to comply with the requirements under Chapter VII of Act of 1894. It is relevant to point out here that the entire cost of acquisition is to be borne by RIICO. (xiii) In the aforesaid context it is relevant to refer to section 44b of Act of 1894 which restricts the purpose of the acquisition of land under Chapter VII to the purposes mentioned in clause (a) of sub-section (1) of section 40, for a private company which is not a Government company. Under 40 (1) (a) the purpose of acquisition has been specified to be the purpose to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith. (xiv) Thus in terms of restrictive scope of public purpose under Chapter VII, industrial purpose cannot be said to fall within the ambit of purpose which is covered under Chapter VII. Thus by no imagination the scope of Chapter VII can be stretched to cover the present acquisition. (xv) The aforesaid section clarifies that under provision of Chapter VII the land cannot be acquired for industrial purposes. Whereas in the present case the land is acquired by the State Government for expansion of industrial area. (xvi) The question of invocation of Chapter VII arises only if the cost of acquisition and the expenses are incurred by the company for which the land is acquired. In the present case neither cost of acquisition of land nor any expenses have been incurred by Hero Honda. Whereas admittedly the cost of compensation totaling to about Rs. 31. 25 crores have been deposited in the court by RIICO. Moreover the total land acquired is 256 acres whereas the land allotted to Hero Honda is only 100 acres. The acquisition proceedings were initiated by the Government on 16. 8. 2004 whereas as per the official record it is clear that the Hero Honda showed interest in the said land for setting up an industry on 14. 6. 2005. The submissions made this apparently clear that the Government keeping in mind the public purpose and the public interest initiated the proceedings for acquisition of land. (xvii) The petitioners have raised the contentions that the proposed acquisition of land for industrialization will be objectionable from the point of view of ecological security. With regard to said contentions it is submitted that a notification was issued on 24. 9. 2005 under Section 25 (3) of the JDA Act 1982 wherein objections were invited with regards to the proposed change of the use of land acquired. Thereafter, after expiry of the stipulated time period for filing of the objections to the proposed change in the use of land a meeting was held on 29. 10. 2005 wherein the whole issue was reexamined keeping in consideration the ecological security. The matter was placed before the Change in Land use Committee on 24. 11. 2005 wherein various issues involving the acquisition of land adjacent to the old Kukas Industrial Area, Allotment of land to RIICO for industrial use and change in the use of land from ecological zone to industrial area were considered. On 17. 12. 2005, Jaipur Development Authority after examining the issues and taking into account the observations of the Hon'ble High Court with regards to setting apart of the same chunk of land for ecological zone as the one acquired, proceeded to change the use of land from ecological to industrial area. It is also a matter of record that on 17. 3. 2006 a notification has been issued for inviting objections with regards to setting apart of land measuring 10391. 10 Bighas as the ecological zone in compliance of the decision passed by this Hon'ble Court in the case of Yaswant Sharma vs. State. ;