INDER SINGH BHATI Vs. STATE OF RAJASTHAN

JUDGEMENT

(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52 (1) and 52 (2) of the UIT Act before this Court by way of S. B. Civil Writ Petition No. 3346/1974 which was however, withdrawn by the petitioner on 26. 10. 1977.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.

(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:- &nbsp&nbsp&nbsp&nbsp&nbsp" 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. "