STATE OF RAJASTHAN Vs. D R LAXMI

JUDGEMENT

(1.) This appeal by special leave arises from the division bench judgment of the High court of Rajasthan made on 2/9/1985 in WP No. 602 of 1978. The admitted facts are that the notification under Section 4 (1 of the Land Acquisition Act, 1894 (I of 1894 (for short "the Act") was published in the State Gazette on 23/3/1977 acquiring 31.28 acres of land for defence purpose. Enquiry under Section 5-A was dispensed with in exercise of the power under Section 17 (4 of the Act and declaration under Section 6 was published on 28/4/1976. Possession was taken on 19-5-1977. The award was passed under Section 11 on 21/3/1978. The reference under Section 18 was sought and made in March 1978 to Civil court for enhancement of the compensation. In September 1978, the respondent filed writ petition in the High court seeking to quash the notification under Section 4 (1 and the declaration under Section 6. The learned Single Judge referred the matter to the division bench. The division bench has held that the acquired land is not an arable or waste land and, therefore, the exercise of the power under Section 17 (4 of the Act was bad in law. Substance of the notification under Section 4 (1 was not published in the locality. The notification under Section 4 (1 did not mention that it was a waste or arable land. On these grounds, the learned Judges have quashed the notification. Thus, this appeal by special leave.

(2.) Shri Aruneshwar Gupta, learned counsel for the appellants, has contended that the view of the High court is clearly erroneous. It is not necessary that the notification under Section 4 (1 should contain declaration that the needed land is a waste or arable land. The finding that it is neither waste nor arable land is not correct so long as the land is capable of cultivation. If no cultivation was made it would still be arable land. Therefore, the view that it is neither waste nor arable land is not correct. It is difficult to accept that the entire six acres of land which is now claimed by the respondents was within the compound wall as found by the High court. The view that substance of the notification was not published in the locality was not correct in law without any further discussion on facts or legal principles. Even the finding cannot be well supported by any material on record; in law the High court was wrong in interfering under Article 226 of the Constitution. Shri Rajinder Sachar, learned Senior Counsel for the respondents, contended that since the substance of the notification under Section 4 (1 was not published which is mandatory, the notification under Section 4 (1, and declaration under Section 6 could be challenged at any time even after the award was made or possession was taken. Since publication of the notification under Section 4 (1 is the foundation for taking further steps for the acquisition, procedural steps required under the Act should be followed. The substance of the notification under Section 4 (1 was not published in the locality. So all the proceedings which had subsequently taken place stand nullified. Therefore, the court would in an appropriate case grant the declaration including to quash the award and future steps. He also contended that it would be difficult to accept that the lands are arable lands, if not waste land. The finding that the land is arable land is based on consideration of the material on record. Therefore, it is not arable land. Further, it is contended that the respondent had stated in the High court that he was prepared to accept the compensation provided the date of notification under Section 4 (1 was shifted to four or five years later to the actual date of the notification under Section 4 (1 published on 23/3/1977. He would stand by the same offer and, therefore, it is not a case warranting interference.

(3.) The questions, therefore, are: (1 whether the notification under Section 4 (1 should contain the declaration that the lands are waste or arable lands; (2 whether the exercise of the power under Section 17 (4 was vitiated by the finding that the lands were not capable of cultivation being situated in urban area; (3 whether the substance of the notification published under Section 4 (1 was not published in the locality; if it not complied with, when the entire acquisition proceedings had become final, whether the High court was justified in exercising the power under Article 226 It is not necessary to recapitulate all the facts narrated above. Suffice it to state that after the reference was made to the Civil court, it passed an award under Section 26 which was challenged by the State by filing an appeal under Section 54 against the enhanced compensation. Thereby, the respondents had accepted the award. The State feeling aggrieved by the enhanced compensation, filed an appeal in the High court. The High court, by judgments dated 5/5/1982and 23/9/1982, dismissed the appeals which became final. Thus, the acquisition proceedings became final.