KOTHARI, J. - (1.) THIS writ petition has been filed by the legal representatives Smt. Chandra Devi and others of Shri Indra Singh Bhati, who was son of Keshav Dev Bhati, whose land in question was acquired by the State Government for Urban Improvement Trust, Jodhpur under the provisions of Section 52 of the Urban Improvement Trust Act, 1961 by the notification under Section 52 (1) of the Act dated 3rd June, 1974. The said land in question is situated at right side of Circuit House to Ratanada Road of Jodhpur and the said land was acquired for the purpose of 'residential-cum Shopping Scheme in between road from Ratanada Crossing to Circuit House and Police Line'.
(2.) THE notice to petitioner in this regard under Section 52 (2) of the Act vide Annexure 3 dated 28. 6. 1973 shows that the land of the petitioner measured 3533 sq. yards and is earmarked as plot No. G-1 in the survey plan produced by the petitioner as Annexure 2 with the writ petition. THE said land is said to have been purchased by the petitioners from the erstwhile Ruler of Jodhpur Maharaja Gaj Singhji by a registered sale deed on 13. 10. 1971. Vide Annex. 6 notification dated 26. 1. 1974 issued by the State Government, the State Government sanctioned the aforesaid scheme and it was stated in the said notification that the Scheme in question shall be completed within three years from the said notification dated 26. 1. 1974. It also appears from the record that the petitioner had earlier challenged these acquisition proceedings including the aforesaid notice dated 28. 6. 1973 and notification dated 3. 6. 1974 under Section 52 (1) and 52 (2) of the UIT Act before this Court by way of S. B. Civil Writ Petition No. 3346/1974 which was however, withdrawn by the petitioner on 26. 10. 1977. THE petitioner has also produced a resolution No. 12 dated 22. 1. 1980 as Annexure 9 with the writ petition wherein it is stated that in accordance with the resolution No. 28 dated 18. 9. 1979 passed by the UIT in the case of one Shri Balveer Singh and others in terms of said decision the land of the present petitioner also be excluded from the said scheme. THE said copy of the resolution No. 12 dated 22. 1. 1980 Annex. 9 in respect of plot No. G-1 is the copy of resolution purportedly signed by the Chairman of the UIT, Jodhpur and certified copy was issued by the Secretary of UIT, Jodhpur on 14. 2. 1980. The aforesaid person Shri Balveer Singh and 11 other petitioners whose land was also acquired by the same notification dated 3rd June, 1974 also filed a civil writ petition challenging the said notification before this Court, which writ petition No. 13/75 came to be allowed by learned Single Judge (Hon'ble Mr. Justice M. C. Jain) of this Court on 30th April, 1981. The judgment of learned Single Judge in Balveer Singh and others vs. State of Rajasthan and others is reported in 1981 ILR (1981) 31. The learned Single Judge held that mandatory conditions of Section 52 (2) were not complied by the respondents and, therefore, the said notification dated 3rd June, 1974 Annex. 18 of that writ petition was quashed by the learned Single Judge. The State filed an appeal against the said judgment of learned Single Judge which too came to be dismissed by the Division Bench of this Court on 22. 8. 1983. The said Division Bench judgment in UIT & etc. vs. Balveer Singh and others is reported in AIR 1985 Raj. 71. The matter was carried further by the State of Rajasthan to the Hon'ble Supreme Court where the said civil appeal Nos. 4976-77 of 1984 came to be disposed by the Division Bench of this Hon'ble Supreme Court on 11th March, 1987 by a short order which is being reproduced hereunder for ready reference:-      " We think that while the judgment of the High Court in so far as and to the limited extent the impugned notification dated June 3, 1974 (Rajasthan Gazette October 10, 1974) has been struck down in regard to the lands belonging to respondents 1 to 12 has to be sustained we do not think that the rest of the judgment can be sustained. We wish to clarify that the impugned notification is quashed only in so far as it affects the lands under acquisition belonging to respondents 1 to 12 are concerned and to this limited extent only. The notification apart from this limited extent remains intact. We also wish to make it clear that the High Court was not justified in quashing the notification on the ground of alleged violation of Article 14 of the Constitution of India in the facts and circumstances of the present matters. The acquiring body was not bound to acquire all lands or to release all lands from acquisition. It is a matter which had to be decided by the acquiring body and the notification cannot be struck down on this account as being violative of Article 14 of the Constitution of India. Under the circumstances, the judgment under appeals is modified to the aforesaid extent. Subject to this modification the appeals fail and are dismissed with no orders as to costs. Sd/ (M. P. Thakkar), J. New Delhi, Sd/march 11, 1987. (B. C. Ray), J" It is also considered opportune to to extract some part of the judgment of learned Single Judge as well as Division Bench of this Court. The learned Single Judge in the detailed judgment after considering the various case laws proceeded to examine provisions of Section 52 (2) of the Act in the following manner :-      " Having referred to the cases cited at the bar I may now proceed to examine the provisions of s. 52 (2) in the light of the principles of interpretation enunciated in order to find as to whether a particular provision is mandatory or directory. As has been observed in some of the cases, referred to above and in the treatises of interpretation the question has to be determined on the basis of the language employed in the provision, the object of the provision, the provision read along with other relevant provisions and the scheme of the Act and the consequences which may flow on account of non-observance. It may be stated that s. 52 deals with compulsory acquisition of land so these provisions have to be strictly followed. Sub-section (2) of s. 52 is couched in an imperative language not only with regard to issuance of notice and service of notice on the owners of the land and on the persons interested and also with regard to publication of notice in the Official Gazette as well as for pasting it on some conspicuous place of the locality. Further compliance of sub- s. (2) has been made a condition precedent for publishing a notice under sub-s. (1 ). From the contents of sub-s. (2), the intention of the legislature appears to be quite manifest. The legislature was not satisfied with simply issue of notice to the owners of the land and persons who may be interested in the opinion of the State Government. The legislature appears not only concerned with service of notice on the owners and the persons interested, but appears to be equally very much concerned with publication of the notice in the Official Gazette and pasting of the same on some conspicuous place of the locality. That is why emphasis was placed by the legislature that notices shall be individually served and besides that the notice shall also be published in the Official Gazette ' at least' 30 days in advance and "shall" be pasted on some conspicuous place in the locality. The words 'also' and 'at least' further signify the peremptory legislature intent. To me it appears that emphasis has been given on publication and pasting because of introducing a deeming clause in the concluding part of para (2) of s. 52 (2), for it may be possible that service may not be practible to be effected on all the owners of the land and persons interested and there may be persons interested in the land other than those, who are so interested in the opinion of the Stage Government. The expression used in the last sentence of para (2) is "upon all other persons who may be interested therein". These words are wider import than the expression "any other person who in the opinion of the State Government may be interested". The object behind such a provision appears to be obvious. The legislature intended to give wide publicity of the intended acquisition, so that all persons having any interest whatsoever may come to know of the intended acquisition and may file their objections under Sec.(3) . . . . . The inevitable result of the above discussion is that the whole of the provision of Sec. 52 (2) is mandatory. Not only it is essential that service of the notice has to be effected individually on all the owners and persons interested, but a publication of notice in the Official Gazette and pasting thereof in the locality is equally essential. Noncompliance of the provision would amount to an illegality, which will violate acquisition proceedings and the notice published under Sec. 52 (1 ). " After considering mandatory compliance with Section 52 (2) of the Act, the learned Single Judge proceeded to consider the facts of the case like this:-      " Thus in view of the additional affidavit of Shri Balveer Singh, the position on the petitioners, other than Balveer Singh. As regards the third requirement of pasting of notice, reference has been made to the affidavit of Shiv Nath Singh and to the notice bearing his report and to the order-sheet. A perusal of the notice said to have been pasted, clearly shows that it was not a public notice. It is a copy of notice Annexure 8, in the name of four persons. Looking to the contents of the notice, it only calls upon the individuals to whom it is addressed to show cause within 30 days why the land should not be acquired and the notices were given to them as owners of the land. Thus, the notice said to have been pasted on the notice board of Nala at the spot, is not a general or public notice but in the names of individuals, which does not satisfy the requirement of law. Besides that notice Annexure R/2 was only in respect of 19,240 sq. yds. land and this notice had no concern with the lands of owners mentioned at S. Nos. 2, 3, 4, 5, 6, 7 and 8 measuring 57,660 sq. yds. In Annexure 18. Even in the order-sheet dated August 28, 1976, what is stated is that notice under S. 52 (2) be issued to Kesheo Deo, Hari Ram. Balveer Singh, Baldeo Singh etc. for information at the spot and to show cause within 30 days. Firstly, it may be stated that compliance of this order-sheet has not been made, as the notice has not been addressed to other individuals other than the four persons. Even the word "etc. " is not there in Annexure R/2. Further the order-sheet too does not speak that a general notice be issued to be pasted on the conspicuous place of the locality. Thus, the requirement of pasting of notice in the locality too has not been complied with. What can thus be found is that only one individual, namely, Balveer Singh, has been individually served with notice and no other compliance of the requirements of sub-s. (2) of Sec. 52 has been made. "
(3.) THE learned Single Judge, therefore, found that there was non-compliance with the provisions of Section 52 (2) in the present case and, therefore, the notification for acquisition was liable to be quashed. THE Court in this regard held as under:-      " When sub-s. (2) of s. 52 has been disregarded in its breach substantially and such disregard dis-entitles the authority to proceed to act under sub-s. (1), then in that case it cannot be said that no substantial injustice has resulted from failure of compliance of sub-s. (2) of s. 52 or that any omission, defect or irregularity has not affected the merits of the case. I have already stated that it is not a case of omission, defect or irregularity, but it is a case of illegality and a case of illegality is not covered under cl. (a) of sub-s. (1) of s. 101. Even if it is taken that the word "omission" covers a case of non-publication of notice in the Gazette or non-pasting of notice in the locality, still it cannot be said that such omission does not affect the merits of the case. . . . . . . In view of the mandatory provisions of s. 52 (2) and in view of the legislative policy and object behind it, in my opinion, the question of prejudice has no relevance. " Learned Single Judge also found that the acquisition proceedings in question were liable to be quashed on the anvil of Article 14 of the Constitution of India as some portion of the land which lied in between two portions of the land sought to be acquired was left out of the acquisition proceedings. The contention of the learned counsel for the petitioner in this regard was noticed like this:-      " Shri Bhandari, learned counsel for the petitioners, also assailed the notification on the ground of breach of equality clause under Art. 14 of the Constitution. It was in respect of 91,739 square yards, out of which land measuring 18,440 square yards was left out from the notification Annexure 18 and only the remaining land has been acquired. The land left out is marked as F, F-1, F-2, F3, and F4 and there was no justification for exclusion of that land from the notification Annexure 18, so discrimination was practised Thus, the acquisition by Annexure 18 is hit by Art. 14. Reliance was placed by Shri Bhandari on a decision of this Court in Ram Pratap vs. The State of Rajasthan (25), wherein land of one nursery was de-acquisitioned, whereas the land of other nursery was not de-acquisitioned, and it was held that it was a glaring case of discrimination. " The findings of learned Single Judge in this regard are reproduced hereunder:-      " I have considered the submissions of both the sides. Admittedly the land measuring 18,440 square yards forms of the West Patel Nagar Scheme 6-A. It is also an admitted position that so far no notification under s. 52 (1) has been issued in respect of this land. No explanation has been offered as to why this land was excluded at the time of publication of notification Annexure 18, dated June 3, 1974. It is really very strange that in respect of the land, which is the subject-matter of Annexure 18, no notice under s. 52 has been published, whereas in respect of the land left out in Annexure 18, notice under s. 52 (2) has been published in the Official Gazette. Of course this has no relevance on the point in question. Notice under s. 52 (2) dates back to December 17, 1973, much earlier to the notification Annexure 18. If the land, subject-matter of notice of December 17, 1973, was the part of the scheme, there was no justification for excluding that land in Annexure 18. Even no justification has been offered so that it can be said that in fact discrimination was not practised. Rather the land was excluded due to some reasons. Say by mistake land can be left out or there may be any other reason. The only explanation, which has been offered for non-inclusion in Annexure 18 is that the land has been surrendered. It is not the State case that the land has been surrendered prior to June 3, 1974. What is to be seen is as to what was the reason for exclusion of the land from Annexure18 of June 3, 1974. When no reason is forth coming, then, it can only be said that the excluded land has been treated differently. The theory of surrender, as has been put forth in the affidavit of Shri Richpal Singh also does not appear to be correct, if viewed in the light of the application dated January 30, 1978. What is stated therein is that the five parties have no objection to the acquisition of the land belonging to them and on negotiation and agreement prices may be settled soon and they stated that there is no need to publish any notification under s. 52 (1) and fair price of the land be arrived at by negotiation. An affidavit of Shri Anand Prakash Bhoot, one of the five parties, has been placed on record in which he has deposed that the land is in their possession and they have never surrendered the land in favour of the State. Thus, it is clear that there has been no surrender of the land and the land has been acquired and no valid reasons are forth coming for non-acquiring of the land till now and no reasons have been brought on record to show as to why the disputed land was excluded in Annexure 18 on June 3, 1974. In the absence of any explanation, I am inclined to hold that the owners of the land which form part of a particular scheme, have been differently treated. " ;