BIRMA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE facts of this writ petition are that in village Ulasi, Tehsil Javal, District Nagaur, there is a public well the way to which lies there through the Nadi and the Dhani, but the villagers who reside on the northern side of the well do not appear to have a direct excess thereto and have to take a longer route. In order to provide a straight path for them, it was proposed that a portion of Khasra No. 115 in the Khatedari of the petitioner Birma Ram be acquired. Accordingly, a notification under Section 4 of the Rajasthan Land Acquisition Act, 1953 was issued by the State Govt. on 22 -12 -73. But no notice under Sub -section (5) of Section 4 thereof in Form No. 1 A provided for the purpose in the Rajasthan Land Acquisition Rules, 1956 was issued. As a matter of fact, no notice of any kind under this subsection was ever issued. The S.D.M., Nagaur by his order dated 18 -9 -74, however, made a report to the Collector Nagaur that no one has presented any objection against the proposed acquisition, and he requested the Collector to move the State Govt. to issue a notification under Section 6 of the aforesaid Act for acquiring one Bighi of land out of the said Khasra No. 115. Thereupon, the State Govt. issued a notification under Section 6 of the said Act on. 26th July, 1975, which was published in the Rajasthan Rajpatra on 21st Aug. 1975.

(2.) THE petitioner by this petition challenges the validity of the notification under Section 6 on the ground that he was given no opportunity for filing objections under Section 5A of the aforesaid Act, because no notice under Sub -section (5) of Section 4 thereof was ever issued. The learned Counsel for the petitioner in this connection relies upon Rajasthan Udyog v. State of Rajasthan and Ors. 1976 WLN 835, wherein towards the end of para 15 a Division Bench of this Court has observed that Section 4 was amended by the Rajasthan Act No. 22 of 1966 and the effect of the amendment in Section 4 of the Act No 24 of 1953 is that the provisions of Section 4(1) are directory and the provisions of Section 4(5) are mandatory.' The argument now is that since the mandatory provision of the Act was not complied with, the declaration under Section 6 is without foundation and illegal. Indeed Sub -section (1) of Section 4 of the said Act provides that such a declaration can be made only after the State Govt. had considered the report, if any, made under Section 5A and such a report could not legally be made without giving an opportunity to the petitioner to raise objections against the proposed acquisition.

(3.) THE result of the aforesaid discussion is that the declaration under Section 6 is without proper legal authority being in disregard of the mandatory requirement of the Jaw and deserves to be quashed. It has resulted in substantial injury without any other remedy.