HAWA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) - All these nine writ petitions raise common questions of law and facts and, therefore, they were heard together and are being decided by a common order/judgment.

(2.) BY these writ petitions, petitioners have challenged the notification Annex. 1 dated January 4, 1991 of the Irrigation Department issued under Sec. 4 (1) of the Land Acquisition Act, 1894, hereinafter referred-to as 'the Act' 1894', which was published in the Rajasthan Gazette on April 18, 1991 whereby the lands of villages Bhirani Chak 5 JSL, Sagar and 3 AML were sought to be acquired for the construction of Sidhmukh Feeder (Raj. ). Out of these nine writ petitions, four writ petitions, i. e. one filed by Manphool, another by Kishana, third by Puran Ram and fourth by Moman Ram have been filed by the residents of village 5 JSL and all of them relate to agricultural lands and the rest of the five writ-petitions have been filed by persons who belong to village 8 JSL. Out of these five writ petitioners, four are agriculturists whose land is sought to be acquired and one of them i. e. Hanuman is a person whose plot of land is situated in the Abadi area of Chak 8 JSL and he has constructed a house on it. It may also be mentioned that although writ petitioners Srichand and Shanker Ram belong to village 8 JSL but they have challenged the notification as regards the specification of the land situated in 5 JSL and dot in 8 JSL. Be that as it may, the facts necessary to be noticed for the disposal of these writ petitions briefly stated are that the petitioners own their land either in Chak 5 JSL or in Chak 8 JSL except Hanuman who owns a house in village 8 JSL. They have given a description of the land that is held by them except Moman Ram. All have stated that they were informed by the Irrigation Department that their land is being acquired and on enquiry, they came to know that a notice under Sec. 4 of the Act, 1894 was issued on 14th Jan. 1991 and was published in the Gazette on 18. 04. 1991. Actually that was issued on 4th Jan. 1991 and not on 14th Jan. 1991. They also came to know that a notification with complete details of the psrsons who were affected by the acquisition and the details of their land was issued on August 21, 1991 and was published in the Raj. Gazette on 10. 10. 1991 marked as Annex. 2 and it was also published in local paper 'lok Samat'on 4. 10. 91. They have claimed that this notifi- cation Annex. 1 issued under Sec. 4 (1) of the Act, 1894 is bad because the details of the land have not been given in the notification i,e. the square numbers and kila numbers sought to be acquired, were not mentioned in the Notification and only the area of the village has been mentioned. This applies to all the villages whose land is sought to be acquired and on account of the. absence of the sufficient identification and particulars of the land, the notification is vague and this amounts to non compliance of Sec. 4 of the Act, 1894 and that has deprived the petitioners of their right to raise objections under Sec. 5a of the Act, 1894 before the Collector. It was also claimed that the land acquired is not the best and they could have suggested an alternate course for the canal which would have saved six squares of land. Moreover, it has been said that the notification under Sec. 4 was not published in two daily news papers and the substance of the notification has not been notified by the Collector on convenient places in the said locality and the area and no compliance of Section 45 of the Act, 1894 has been made and, therefore; objections could not be raised under Sec. 5a of the Act. When no objections were raised under Sec. 5a of the Act, 1894, no enquiry was made by the Collector and no report was sent to the State Government and, therefore, declaration under Sec. 6 of the Act, 1894 has been made without going through the report as required by Section 5a. In some of the plots, houses have been constructed and, therefore, it appears to be a case of total non-application of the mind. The present drawing of the Feeder Canal has been given a turn at RD 52 in order to reach the head, but if this canal instead of giving turn towards village, could have reached the head right from 26 RD and thereby the turn would have been avoided and the length of the canal would have been reduced by six squares and moreover this land will require filling of earth to the height of about 8 feet and, therefore, this being uneconomic, petitioners have sought the relief for quashing of the entire acquisition proceedings. The Notification under Sec. 4 has been filed as Annex. 1 and notification under Sec. 6 as Annex. 2.

(3.) IN ground No. 8 of the writ petition filed by Hawa Singh, it has been alleged that the Collector has failed to give notice of the substance of this Notification at any convenient place in the said locality. A definite reply supported by the affidavit of the Officer of the department categorically it states that the contents of this sub para of the writ petition are incorrect. The notification was affixed on the conspicuous and convenient public places in the locality as also the notification was affixed at the Gram Panchayat building. These contents have not been challenged or denied by filing a rejoinder. Moreover, if the counsel wanted to dispute them, he could have requested the Court to summon the record. If their allegation is denied and it is specifically averred that such a publication has been made and a notice has also been affixed on the Gram Panchayat building then a request should have been made to the court to summon the record to disprove that assertion. The burden rested with the petitioners to prove that there is a non compliance of Sec. 4 (1) of the Act, 1894 i. e. the Collector has failed to publish the substance of the notification at convenient places in the locality and, therefore, they could have requested the Court to summon the record to verify the contention of the respondents but that has not been done. IN Babu Ram's case of Delhi High Court which has been quoted earlier, the Court directed the counsel to produce the original records and the original records were seen. IN this case when no request was made, the record was not summoned and, therefore, the State's contention that substance of the notification was published in the locality at the convenient places cannot be easily brushed aside. Mere bald allegation of the petitioners cannot be accepted as a go ,p,'l truth. It is not a case where the notification has been issued with any nalafiies. A particular scheme of great importance involving expenses of crores of rupees has already been initiated and it is under progress and it is going to benefit the cultivators of two districts by irrigating three and a half lacs bighas of land and unless any malafides are imputed; such a notice under Sec. 4 (1) cannot be held to be bad on mere technical grounds when it is admitted even by Mr. Sharma that the acquisition is for the important public purpose. Thus, the spirit behind the acquisition cannot be challenged. Thus, when no allegations of malafides are made, the technical defects pointed-out in the notice under Sec. 4 (1) cannot result in quashing the entire acquisition proceedings when out of 110 persons whose land has been acquired, only these nine persons have come to the Court and rest of them have already surrendered their lands and have accepted the compensation. I rely in this respect on a S. B. decision of the Bombay High Court in Metro INdustries Bombay vs. Union of INdia (12) and the decision in Jage Ram vs. State of Haryana (13) wherein it has been held that the notification under Section 4 can be challenged on the basis of the malafides or when it has been issued in colourable exercise of the powers. Both these contingencies do not exist in this case. Lastly, Mr. Sharma submitted that although he admits that purpose for which the land is sought to be acquired is public purpose i. e. construction of 'sidhmukh Feeder' and it is a very important project for which crores of rupees have been spent and will still be spent and the project has been approved by the Central Water Board and is also being assisted by the Eureopena Economic Community. He has, therefore, submitted that if there is any defect in the notice, the land may be acquired by issuing a fresh notice, and, therefore, if the date of the notification is advanced by one year, in that case he will be satisfied and in this respect, he has placed reliance on a decision of their lordships of the Supreme Court rendered in 1992 AIR S. C. 1698. That was a case in which a defect as regards the approval of the scheme was found and, therefore, the acquisition was quashed by the High Court but the Hon'ble Supreme Court interfered and said that keeping in view the importance of the entire acquisition, a major part of it has already taken place and development activities have already started, their lordships in those circumstances advanced the date of the notification by three years for the purpose of calculating the market value of the land to the extent it is not relatable to the improvements, made by the appellants in the land of the locality. IN this case, I don't find any defect in the notification. The notification has been published in gazette and two local newspapers and its substance has been published in the locality at the convenient places and was also affixed on the notice board of the Gram Panchayat building in which the land is situated. As regards the area which is sought to be acquired, the respondents' contention is that this canal was carved out before 30 years and work on it, is in progress and stones have been laid before 1990 to show that from or through which particular area, it will run because Amarsingh sub branch and Jhansal Distributory System are already functioning since long and one of its bank will be utilised for construction of this canal and, therefore, the people of the locality were never in confusion about the course of the cancl. So much so that they have already filed the protest petition before the Hon'ble Chief Minister which was sent for report to the concerned minister and, therefore, when the people of the locality were not in doubt about the acquisition proceedings and the names of the villages that were involved in it and the area sought to be acquired, were also specified, I find no defect in the notification under Section 4 (1) of the Act, 1894. As one bank of existing Amarsingh Sub branch & Jhansal Distributory will be utilized for construction of this canal keeping in view the down gradient of land & easy flow of water, this proposal is most suitable as well as economical. Moreover, when there is no defect in the notification issued under Sec. 4 (1) of the Act of 1894 then the date of notification is the determined factor for arriving at the cost of the canal sought to be acquired. The date of notification need not be advanced by one year as suggested by Mr. Sharma. For the reasons aforesaid, the writ petitions deserve to be dismissed.