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High Court Of Rajasthan
Judgename : Rajindar Sachar
JASRAJ - Appellant
Versus
STATE OF RAJASTHAN - Respondent
Civil Writ Petn. 1824 Of 1975
Decided On : 09/24/1976
LAND ACQUISITION - Withdrawal of acquisition - Order under Section 48 (1) of the Rajasthan Land Acquisition Act, 1953 - Effect - Rescission of the order - Validity - Possession of the land - Public purpose - Acquisition for a Company - Compliance with Part VII of the Act.
Fact of the Case:
The petitioners, owners of land in Kila Nos. 1 to 5 of square No. 36, situate in Chak 3-E, District Sri Ganganagar, challenged the notification issued by the respondent State of Rajasthan dated 21-11-1975 by which it had cancelled its earlier notification dated 12-11-1975 by which the State had in exercise of its power under Section 48 (1) of the Rajasthan Land Acquisition Act (hereinafter to be called the Act) had withdrawn the land of the petitioner from acquisition as declared in Section 6 notification dated 24-11-1973.
Finding of the Court:
1. An order under Section 48 (1) of the Act has the effect of withdrawing the notification issued under Section 4. This means that there is a clean slate and if subsequently the Government wants to acquire the land it must start from the stage of issuing a fresh notification under Section 4 of the Act. 2. It is not open to the Government, as Mr. Munshi seeks to urge, just to withdraw the order under Section 48 and maintain that by the withdrawal of order under Section 48 all the earlier proceedings including Sections 4 and 6 notifications have revived. 3. The possession by the Government which makes Section 48 inapplicable is possession taken under the Act and full possession totally excluding the person whose land is being sought to be acquired. 4. Possession cannot be accepted to have been taken in the manner as in the present case where the person Vikramjit from whom possession is said to have been taken has apparently no authority, to part with possession. 5. An acquisition for a Company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds. In such a case, it is not necessary to go through the procedure prescribed by Part VII.
Issues: 1. Whether an order under Section 48 (1) of the Act requires to be published in the official gazette? 2. Whether the Government has the power to withdraw an order passed under Section 48 of the Act? 3. Whether the possession had been taken by the respondents much earlier to the order of 12-11-1975 being known to the petitioners? 4. Whether the acquisition was bad because admittedly the procedure required by Section 40 of the Act had not been followed?
Ratio Decidendi: 1. An order under Section 48 (1) of the Act does not require to be published in the official gazette. 2. The Government does not have the power to withdraw an order passed under Section 48 of the Act. 3. The possession had not been taken by the respondents much earlier to the order of 12-11-1975 being known to the petitioners. 4. The acquisition was not bad because admittedly the procedure required by Section 40 of the Act had not been followed.
Final Decision: The writ petition was allowed and the impugned notification of 21-11-1975 was quashed. The notification of 12-11-1975 under Section 48 of the Act was held to be valid. A mandamus was issued restraining the respondents from in any manner interfering with the possession of the petitioners over the land in dispute except in accordance with law.
RANJINDAR SACHAR, J.
( 1 ) THIS is a petition under Article 226 of the Constitution seeking to quash the notification issued by the respondent No. 1 State of Rajasthan dated 21-111975 by which it has cancelled its earlier notification dated 12-11-1975 by which the State had in exercise of its power under Section 48 (1) of the rajasthan Land Acquisition Act (hereinafter to be called the act) had withdrawn the land of the petitioner from acquisition as declared in Section 6 notification dated 24-11-1973.
( 2 ) THE petitioners are the owners and occupiers of land on Kila Nos. 1 to 5 of square No. 36, situate in Chak 3-E, District Sri Ganganagar. The State of rajasthan published a notification D/- 18-1-1971 under Section 4 (1) of the act, proposing to acquire the land for public purpose for extension of Abadi ganganagar. The notification was published in the Government Gazette of 1612-1971. Amongst others it included the petitioners land in Kila No. 36. A further notification dated 24-11-1973 under Section 6 of the Act was published in the Government Gazette of 27-12-19-73. In the said notification by inadvertent error the number of the petitioners land was mentioned as 39 and this was corrected by the correction slip dated 19-2-1974.
( 3 ) THE petitioner No. 1, it appears after obtaining permission from the industries Department had installed a Saw Mill in Kila 1 of square 36 in April, 1974. It appears that adjacent to the land of the petitioners there are working some industries and they seem to have taken up with the Government the question of releasing the said land from acquisition. This request seems to have been accepted by the Government and a notification dated 6-5-1975 was published by which the Government directed under Section 48 (1) of the Act that the land mentioned in the said order, is released. The representations which were accepted was of M/s. Krishna Cottage industries, Nav Bharat Industries and Ganesh Oil and General Mills, and M/s. Sri Ganganagar Cotton Ginning and Pressing Factory. Some further representations about release of the land from acquisition were accepted by the government by its notification of 12-9-1975 and some more land was released from acquisition under Section 48 of the Act. This apparently emboldened the petitioners to make representation asking that their land be also released from acquisition. Apparently the representation met with success and the government issued a notification dated 12-11-1975 that the land (belonging to the petitioners) contained in Kila Nos. 1 to 5 in square No. 36 was released from acquisition under Section 48 of the Act. It was also directed in the said order that no compensation shall be paid to the petitioners who are owners of the land in accordance with the provisions of Section 48 of the Act. The notification was endorsed amongst others to the Collector, Ganganagar, to the chairman, Municipal Council, Ganganagar and the petitioners.
( 4 ) ORIGINALLY the petitioners filed writ petition on 25-11-1975 in this Court with the allegation that in spite of the order of 12-11-1975 the Tehsildar, ganganagar respondent 4 came with members of the Police staff to the disputed land to take forcible possession of the factory on 15-11-1975. It was also alleged that the Tehsildar had pasted notices on the outer gate of the factorv that possession will be taken by the Government even though the factory was working and the material of the petitioners was lying on the land. It was also alleged that on 17-11-1975 some employees of the Rajasthan State transport Corporation respondent 5 numbering about 50 demolished a portion of the wall of the southern side and 3 or 4 buses standing inside the area belonging to the petitioners. This it was said was done because respondent 2 the Collector, Ganganagar was also the Chairman of the Urban Improvement trust and had agreed to transfer this plot of land to respondent 5. The petitioner therefore sought to restrain the responden
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