Allowed

M/S Connoisseur Develop Pvt. v. State of Raj and Ors.

Rajasthan HC21 Aug 2018CW/1071/2011

Case brief

AI extract

What is this about?

Acquisition of residential-development land for a link road was challenged over changed alignment and denial of a hearing. The court rejected the delay and mala fides objections but held that Section 5A(2) had not been complied with. It allowed the writ petition and quashed the Section 6 notification.

What did the court decide?

The impugned notification dated 4.5.2009 (Annex.13) was quashed and set aside.

M/S Connoisseur Develop Pvt. Vs State of Raj and Ors. — Land Acquisition | Rajasthan HC (2018)

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(1 of 24)

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[CW-1071/2011]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 1071/2011

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M/s Connoisseur Developers Pvt Ltd. through its Law Officer Shri Yogesh Sharma, son of Shri Hari Shankar Sharma, by caste Brahmin, resident of 144-2, Ashram Mathura Road, New Delhi.

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----Petitioner

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Versus

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1.State Of Rajasthan through Principal Secretary, Urban Development and Housing Department, Secretariat, Jaipur (Raj.)

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The Secretary, Urban Improvement Trust, Bhiwadi, Distt. Alwar (Rajasthan).

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The Chief Town Planner (NCR), Rajawsthan, Nagar Nayojan Bhawan, J.L.N Marg, Jaipur.

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The Deputy Town Planner (NCR), Urban Improvement Trust, Bhiwadi, Distt. Alwar (Raj.)

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The District Collector, Alwar (Rajasthan)

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The Land Acquisition Officer, Urban Improvement Trust, Bhiwadi, District Alwar (Raj.)

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M/s. Star Rison Landmarks through its Partner Shri Nitin Gupta, resident of A-26, New Krishan Park, Najabgarh Road, New Delhi.

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----Respondent

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For Petitioner(s) : Mr.K.K.Sharma, Sr.Adv. Assisted by Ms.Alankria Sharma, Adv. For Respondent(s) : Mr.Rajendra Prasad, AAG assisted by Mr.Surya Pratap Singh, Adv Mr.R.K.Mathur, Sr.Adv assisted by Mr.Aditya Mathur, Adv. Mr.Bharat Vyas, Adv.

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Mr.Pradeep Choudhary, for Intervener

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Judgment / Orde

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JUDGMENT RESERVED ON : 21.08.2018

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(2 of 24)

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[CW-1071/2011] 27/09/2018

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JUDGMENT PRONOUNCED ON :

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The petitioner, a company registered under the Companies Act, by way of this writ petition, assails the notification dated 4.5.2009 issued under Sec.6 of the Land Acquisition Act, 1894 (herein after referred to as “Act of 1894”). It also assails all the earlier proceedings initiated under the Act of 1894 and the consequential orders passed in pursuance of the notification under Sec.6 of the Act of 1894 dated 4.5.2009 and further prayed for appointing a committee to examine the reasons for shifting the alignment and granting benefit to the private colonizers.

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The petitioner states that they purchased the land admeasuring 46.4 bighas for development of the Housing Scheme as a residential colony and no objection certificate for converting the agricultural land for residential purpose was issued by the UIT on 15.9.2006. The proceedings under Sec.90B of the Rajasthan Land Revenue Act were accordingly initiated and the land was surrendered for the purpose of development of the residential colony. The Sub-Divisional Officer, Tijara passed an order allowing 90B for various land on 23.3.2007, 9.7.2007 and 24.10.2008. The certificate was also issued to the effect that there was no acquisition proceedings contemplated in relation to the said land on 2.8.2007 by the UIT, Bhiwadi.

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The UIT resolved as per the master plan to construct a link road from Jaipur to Suhana in its meeting held on 2.12.2005 and a proposal thereto was

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(3 of 24) [CW-1071/2011] sent for publication of notification under Sec.4(1) of the Act of 1894 to the State Government. In terms of the proposal, the boundaries of the said road were marked mentioning therein the names of villages and Khasra number of lands which would fall in for acquisition. The proposal was approved and sent vide UIT, Bhilwadi meeting dated 23.2.2006 to the State Government. As per the aforesaid proposal, land of the petitioner was not falling within the boundaries of the proposed 60’ link road.

¶28

The controversy arose on account of subsequent proposal sent in the meeting held on 16.6.2007 where the original boundaries as proposed previously were changed and the alignment of the link road was shown to include the lands which were in ownership in title of the petitioner company.

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The petitioner company assailed the said action and also has submitted their objections preferred before the Land Acquisition Authority under Sec.5A(1) of the Act of 1894 were not considered and they were not given any opportunity of hearing as envisaged under Sec.5A(1) of the Act of 1894. It is their case that specific objections were raised on 30.5.2008 after the notification under Sec.4(1) of the Act was published in Rajasthan Patrika and Dainik Bhaskar on 1.5.2008. It is their submission that the objections were within time as envisaged under the Act and were therefore required to be considered. Further, the decision/statement under Sec.5A of the Act was never conveyed and the

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(4 of 24) [CW-1071/2011]

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objections raised were rejected by the Land Acquisition Officer without giving any findings.

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It is further stated that the rejection of their objections were not within their knowledge and immediately after the notification under Sec.6 was published in the news papers, the company approached the authorities by making a representation on 21.5.2009. The said representation submitted by the petitioner to Minister, UIT was referred to the Chief Town Planner and the Chief Town Planner further directed the Secretary, UIT to submit detailed report along with the factual matrix. However, thereafter the matter has been kept in abeyance. On 25.1.2010, UIT again asked the company to submit its representation to the Secretary which was duly submitted whereafter a report was submitted by the Secretary on 6.12.2010 which has been assailed before this court.

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Learned Senior Counsel Mr.Kamlakar Sharma appearing for the petitioner submits that 90B proceedings were finalized on 23.3.2007. The UIT, Bhiwadi issued consequential order dated 9.7.2007 detailing the lands available for the purpose of development and in terms of Sec.90-B(3) and Sec.63(1)((2) of the Land Revenue Act. The land was therefore made available for the purpose of residential development in terms of the master plan and the SDO also accordingly passed the order with regard to the land on 24.10.2008. A certificate was

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(5 of 24) [CW-1071/2011]

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also issued by the UIT, Bhiwadi saying that the lands were not under any proposal of the acquisition. Thus it is submitted that upto 2.8.2007, there was no proposal for acquiring the petitioner’s land. However, it is with the purpose to give undue benefit to the respondent no.7 that the alignment of road was changed. The committee without assigning any reason had changed the alignment on 16.6.2007 resulting in petitioner’s land which had been converted in terms of Sec.90-B of the Land Revenue Act being used for the purpose of acquisition and accordingly the notification was issued on 1.5.2008. It is submitted that the respondent no.7 has purchased the land for the purpose of development on 22.11.2006 i.e. after the original proposal had been sent to the State Government on 23.2.2006. Thus the land was already under acquisition as per the original proposal. However, the UIT wrongfully issued a no objection certificate on 5.2.2007 to the respondent no.7. The survey had already been conducted prior to that date and, therefore, it is apparent that the change of alignment was on account of malice and there is collusion between respondent authorities and the respondent no.7 with a view to help the respondent no.7, the alignment had been changed and the land which was already meant for acquisition was purchased by the respondent no.7 and subsequently , has been cleared from acquisition to benefit respondent.

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(6 of 24)

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[CW-1071/2011]

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Learned senior counsel also submits that in terms of Sec.5A of the Act of 1894, once the objection had been submitted, it was incumbent upon the authority concerned to give an opportunity of being heard to the objector i.e. petitioner in terms of the Sec.5A(3) and thereafter take a decision. As no such opportunity was granted, the acquisition proceedings are vitiated in law and must fail.

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Learned counsel has further pointed out that originally acquisition was for 60 meter wide road which was communicated to the petitioner vide letter dated 12.7.2011 by the UIT with the question that road alignment can only be examined after superimposition of Khasra map in accordance with Master plan. Further it was informed that for acquiring 60 meter road, double the land i.e. 120 meter has been acquired. However, it is submitted that while acquiring the land, double the land of road has been acquired only from one side i.e. Northern side since 90B proceedings for khasra number of petitioner being 81, 82, 115, 149, 150, 151, 153, 156 had already been taken place, and as the land has already entered in the name of UIT, the same were not included in the acquisition order. Thus it is submitted that the land which was surrendered in terms of 90B proceedings have been also included for the purpose of widening the road

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(7 of 24)

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[CW-1071/2011]

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and the entire exercise is colorable exercise of power.

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Learned counsel has relied on the judgments reported in AIR 1976 SCC 2095 (Farid Ahmed Abdul Samad and anr. Vs. The Municipal Corporation of the City of Ahmedabad and anr; and 1996(6) SCC 445 (State of Rajasthan Vs. D.R.Laxmi).

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Per contra, learned Addl. Advocate General Mr.Rajendra Prasad has raised the preliminary objections and submits that the notification under Sect. 4(1) of the Act of 1894 was issued on 11.4.2008 but it was lastly notified at public place on 7.5.2008 and notification under Sec.6 was notified on 4.5.2009 and the petition was filed before this court on 7.1.2011 is highly belated. It is submitted that upto 7.5.2008, which is the last date of publication of notification, the respondent no.6 did not receive any objection under Sec. 5A of the Act of 1894. The notification under Sec.6 of the Act of 1894 was issued after the objections were decided on 4.5.2009 and thus the proceedings cannot be said to be vitiated. The objections of the petitioner were received by the LAO on 30.5.2008 itself and he heard on the objections of the petitioner and sent the recommendation to the State Government. Thus the requirement in terms of Sec.5A(2) of the Act of 1894 were fully complied with. It is submitted that after the objections

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(8 of 24) [CW-1071/2011]

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having been received by the LAO, there is no requirement for the LAO to give another date for hearing as he can decide such objections on that very date itself as the enquiry under Sec.5A is run administrative inquiry. Thus viewed, the submissions of the petitioner have been countered by the respondent stating that there is no illegality committed.

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As regards the objections relating to the change of alignment, it is submitted that in this case, on the basis of change of alignment, proposal was made and modified subsequently wrongfully. Alignment could be said to have been changed only if the notification under Sec.4A had already been issued and thereafter its realignment was made.

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The respondent no.2 has also filed its reply and admits that 90B proceedings with regard to the land of the petitioner were completed on 24.10.2007. As per original proposal, 60 meter link road was proposed. It is denied to have acted of any kind of proposal by respondent no.7. The alignment of road was prepared as per the convenience and practical feasibility and the respondents have never extended any benefit to the respondent no.7. The objections raised by the petitioner were considered by the Land Acquisition Officer and construction of road is for public purpose and for that individual interest cannot be allowed to dominate thereto. It is

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(9 of 24) [CW-1071/2011]

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submitted that the notification under Sec.9(1) of the Act of 1894 was issued and the award was approved by the State Government and thereafter final award was passed on 20.6.2011 and it is, therefore, objected that once the award has been finally passed, land acquisition proceedings so concluded cannot be challenged. It is also submitted that the matter was examined again on the basis of representation made by the petitioner and both the petitioner and respondent no.7 were called upon by the Chief Town Planner who has examined the matter and found no illegality in the action taken.

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The respondent no.7 has also filed reply and submits that he has been unnecessarily dragged in the litigation. He has submitted that it is for the State and the UIT to decide the alignment of the road on the basis of facts available on record and the enquiry with respect to the reasons for arriving to such a decision would not be required to be challenged under Article 226 of the Constitution of India. There was no untutored benefit provided to the respondent and minutes of the meeting dated 16.6.2007 would reveal that on 30l.1.2007, under the Chairmanship of the District Collector, meeting was held in which the alignment of 10 major roads reflecting Master/Sector Plan was fixed and a decision was taken to proceed further for acquisition. The detailed study of the road network in the master plan or in the Sector plan is

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(10 of 24) [CW-1071/2011]

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undertaken by the Planning Cell of the UIT and road network is decided by the experts by considering various factors including the technical feasibility etc. The Planning Department of the Government of Rajasthan has ultimately laid down the plan and no malafides can be attributed to such an act.

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It is further submitted that site plan for the land of petitioner was already approved by the Urban Planning Department over the land situated at Khizuriwas which was released on 9.10.2007. The proposed road has been shown in the said site plan issued to the petitioner and thus the petitioner was having knowledge about the change in alignment at the time of issuance of notification. Apart from the above, one application was moved by four applicants for their impleadment stating that their rights have been seriously prejudiced on account of pendency of writ petition. It is stated in it that they have already been registered for being allotted the plots, however, due to pendency of litigation, same has not been done.

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Another application was moved by CREDAI, Bhiwadi, an association of builders situated at Bhiwadi, seeking impleadment as intervener on the terms that their purchase has come to stand still on account of interim order passed by this court, and accordingly, they were allowed to participate in the proceedings as intervener. After the writ petition was preferred, notices were issued and vide interim

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(11 of 24) [CW-1071/2011]

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order dated 18.7.2011, this court restrained the respondents from dispossessing the petitioner from the land in question.

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Having noted the submissions of all the parties, this court finds that the core issues which require to be decided are three folds; firstly whether the writ petition preferred by the petitioner can be entertained after the acquisition proceedings have attained finality and final award having been passed; secondly whether the acquisition proceedings suffer from lack of bonafides and is an attempt to benefit the respondent and; thirdly whether there was a non-compliance of Sec.5A of the Act of 1894 before notification under Sec.6 was passed and the proceedings were liable to be quashed.

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So far as first question is concerned, this court finds that the notification under Sec.4 was issued on 1.5.2008, the notification under Sec.6 of the Act was notified on 4.5.2009, the writ petition has been preferred before this court on 17.1.2011. Thus there is indeed some delay on the part of petitioner in approaching the writ court questioning the notifications under Sec.4 & 6 of the Act of 1894 and the decision taken on their objection under Sec.5A. However, this court finds that the petitioner has submitted the objection under Sec.4(1) within the statutory period i.e. on 30.5.2008. The Land Acquisition Officer has, in its

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(12 of 24) [CW-1071/2011]

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decision under Sec.5A, however noted that since the date of notification is 11.4.2008 while last publication is on 1.5.2008, 30 days are to be counted from 11.4.2008 and, therefore, it counts the period of 30 days from 11.4.2008 and not last date of publication i.e. 1.5.2008. It is also to be noted that after the notification issued under Sec.6 of the Act, matter was re-examined at the government level and the Chief Town Planner also directed the Secretary, UIT to submit its report and it is thereafter that when the respondents have ultimately taken decision not to acquire the land of petitioner, then the petitioner has approached this court.

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In Lajja Ram and ors. Vs. Union Territory, Chandigarh and ors. reported in ( 2013) 11 SCC 235 , some what similar question came up for consideration and Hon’ble Apex Court held in para nos.9 & 10 as under:

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“9. Although the underlying policy behind dismissal of petitions on grounds of delay and laches is to discourage agitation of stale claims, still this court has held that the delay in approaching the court must not always act in prejudice to the aggrieved party and the court must prudently exercise its discretion in doing so. This court in Tridip Kumar Dingal Vs. State of W.D. has held that this court may refuse to exercise its

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(13 of 24) [CW-1071/2011]

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discretion where there is delay and laches in invoking jurisdiction of the writ court. However, the exercise of such discretion must be based on the facts and circumstances of each case and the decision must rest upon a variety of factors including the nature of fundamental rights breached, the remedy claimed and when and how the delay arose. This court in Northern India Glass Industries Vs. Jaswant Singh has observed that the conduct of the party challenging the notifications and pleading condonation of delay also plays an important role in exercise of this discretion.

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Keeping in view the aforesaid observations of this court, in our considered opinion, the delay in approaching the court is satisfactorily explained by the appellants. The conduct of the appellants is evidenced by the consistent stand adopted by them in requesting the respondent authorities throughout the course of acquisition proceedings to exempt their lands from acquisition proceedings. The appellants have assigned cogent reasons for the delay in approaching the writ court amidst successive reports of the LAO making variable recommendations in terms of grant of such exemption. The appellants have approached the writ court soon after a final decision was made by the respondent authorities in this regard. Therefore, the High Court was in error in dismissing the writ petition on the ground of

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(14 of 24) [CW-1071/2011]

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delay and laches on the part of the appellants in approaching the High Court.”

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Thus viewed, I find that petitioners have been constantly vigilant in pursuing their claim and availed all remedies before approaching this court and there are no laches on their part.

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The second question which requires consideration is whether acquisition proceedings initiated by the respondents can be suffered from lack of bonafides and is an attempt to benefit the respondent no.7 alone. From the facts available on record, I find that while it is correct that respondent no.7 has purchased the lands for development of housing colony on 22.11.2006 and the proposal for construction of link road along with the proposed area to be marked for acquisition was sent by the UIT to the State Government prior to it i.e. 23.2.2006 and the lands purchased by respondent no.7 were included in that proposal. But the said proposal was subsequently modified by the UIT and in the subsequent proposal, the lands of the respondent no.7 do not find place and that of the petitioner have been included. However, this alone cannot be a reason but draw an inference of malicious action on the part of the State in issuing notification. The State Government is the ultimate owner of the land and thus it has a right to acquire the land for public purposes. Malice cannot be attributed to the

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(15 of 24) [CW-1071/2011]

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State Government in acquisition. There may be several factors for the UIT to change its proposal. No personal allegation on the official of the UIT has been levelled to allege malafide.

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Thus viewed the notification issued under Sec.4(1) by the State Government on 1.5.2008, cannot be held to be actuated by the malice and contention of the petitioner on this count falls. My view is supported by the law as laid down by the Apex Court in the case of State of Andhra Pradesh and ors. Vs. Goverdhanlal Pitti reported in AIR 2003 SC 1941 .

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Coming to the central issue with regard to the question whether Sec.5A applies in this case or not, it would be appropriate to note the said provision for appropriate discussion:

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Sec.5A.: Hearing of objections. � (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, [within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be.

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(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard [in person or by any person authorised by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, [either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of the [appropriate Government] on the objections shall be final.

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(16 of 24) [CW-1071/2011]

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(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.]

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A bare reading of the aforesaid provision shows the heading of ‘hearing the objections’. Thus what is provided hereinabove under Sec.5A is not only that objections should be accepted but hearing of all such objections in person or by any person authorized by the objector or by builder, shall be given by the concerned Land Acquisition Officer/Collector. Not only the objections would be heard, he is also required to make such further inquiry if he thinks necessary which would mean that if he does not think of making any such further inquiry, he would also assign reasons thereto. However, it is also available to make different reports in respect of different parcels of such land with his recommendation.

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In the aforesaid background, this court examine the decision of the Land Acquisition Officer under Sec.5A of the Act of 1894. It is noticed that in the first part, he has observed that there was no objection received within 30 days from the date of notification i.e. 11.4.2008. It is also noticed that the Land Acquisition Officer has demanded from UIT the revenue record relating to the land in question but the same remained unavailable and he has not looked into the revenue record and the trace maps of the area. However, he has mentioned that copy of the gazette was received on 29.4.2008 and with a view

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that the period as provided under Sec.5A of the Act does not lapse, he has proceeded to prepare a column mentioning of each parcel of land of the village and has also mentioned about the objections having been received in brief.

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As regards the objections raised by the petitioner are concerned, it is mentioned that the objector has raised objections relating to the land having been converted in terms of Sec.90B and of claim having been developed for the said land but it is stated that no documentary proof in this regard was submitted and hence the objection is rejected. 27. The petitioner has also placed on record the objections which they had raised before the Land Acquisition Officer and a look at the objection shows that they have taken objections with regard to 90B proceedings and also with regard to the earlier alignment proposed by the UIT and also have mentioned about the certificate issued earlier of the land not being acquired. It is also stated that master plan should be superimposed with the revenue map to assess the correct method of alignment. The respondents have in their reply stated that the Land Acquisition Officer has decided the objections after hearing the petitioner.

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Another submission which the learned Addl. Advocate General has raised before this court in relation to the inquiry under Sec.5A of the Act, is

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that the inquiry under Section 5A is an administrative inquiry and relies on the Constitution Bench judgment of Hon’ble Apex Court in A IR 1964 SCC 648 ( Jayantilal Amratlal Shodhan Vs. F.N.Rana and ors. ) wherein it was observed that the inquiry to be conducted under Sec.5A of the Act is in the nature of administrative function and, therefore, no dates are to be further given by the Land Acquisition Officer for giving hearing to the concerned objector.

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I find that the argument is based on a basic fallacy of interpretation of the verdict of Supreme Court. The question framed by the Constitution Bench in Jayantilal’s case (supra) were:

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“4. In this appeal counsel for the appellant has raised two contentions:

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(1) That the Commissioner had in the events thakt had happened no power to issue the notifications under Sections 4 & 6 of the Land Acquisition Act, of 1894, purporting to act upon the notification issued by the President on July 24, 1959, under Art. 258(1) of the Constitution entrusting the functions of the Union Government relating to acquisition of land to the Commissioners of Divisions in the State of Bombay, because those functions could not be performed after the State of Bombay ceased to exist, and the State of Gujarat came into existence, and the consent of the Government of the latter State to the entrustment of functions to its officers had not been obtained; and

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(2) that the proceedings under S.5A of the Land Acquisition Act being quasi-judicial, authority to make a report under that Section could not be delegated by the Commissioner, agnd that the report made by the Additional Special Land Acquisition Officer could not in any even be considered by the Commissioner.

¶91

The second question on which argument was advanced does not require much elaboration. By s. 5A of the Land Acquisition Act, power to hear objections has to be exercised by the Collector as defined in s. 2(c) of the Act. The power to hear objections is under the statute, not the power of the appropriate Government, but of the Collector. The expression 'Collector' as defined in the Act is either the Collector of a district or any officer specially appointed by the appropriate Government to perform the function of a Collector under the Act. The statute itself confers authority to appoint a Collector for

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the purposes of the Act by the appropriate Government, and the Commissioner acting in pursuance of the powers conferred upon him by Art. 258(1) appointed the Additional Special Land Acquisition Officer, Ahmedabad, as Collector for the purposes of s. 5A. In so appointing the Additional Special Land Acquisition Officer the Commissioner exercised the power which was statutorily vested in the appropriate Government.

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a district or any officer specially appointed by the appropriate Government to perform the function of a Collector under the Act. The statute itself confers authority to appoint a Collector for the purposes of the Act by the appropriate Government, and the Commissioner acting in pursuance of the powers conferred upon him by Art. 258(1) appointed the Additional Special Land Acquisition Officer, Ahmedabad, as Collector for the purposes of s. 5A. In so appointing the Additional Special Land Acquisition Officer the Commissioner exercised the power which was statutorily vested in the appropriate Government.

¶96

The High Court dismissed the petition holding that the notification of July 24, 1959, under Art. 258(1) of the Constitution had the force of law and was therefore saved under s. 87 of the Reorganisation Act. In consequence reading s. 87 with s. 82 of the Reorganisation Act, the Commissioner would have the power to carry on the functions entrusted to him by the notification of July 24, 1959. It further held that the Commissioner had the authority by virtue of the notification of July 24, 1959, to appoint any officer specially to carry on the duties assigned to the Collector under the Act and therefore the officer so appointed could carry on the duties assigned to the Collector under the Act. Finally, it held that proceedings under s. 5A of the Act were administrative in nature and there was therefore no question of delegation of any quasi-judicial functions either by the notification dated July 24, 1959, or by the order of the Commissioner appointing an officer specially to carry on the duties of the Collector under the Act. The appellant thereupon applied for a certificate which was granted; and that is how the matter has come up before us.

¶97

Thus the question before Apex Court wherein aforesaid observations have been made are with respect to the delegation of power and in that context the inquiry was terms as administrative inquiry. The concept of providing hearing in administrative exercise of powers is well recognized. If the provision requires the concerned authority to give hearing to the objector, the authority concerned absolved itself from such responsibility.

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In AIR 1976 SCC 2095 ,(Farid Ahmed Abdul Samad and anr. Vs. The Municipal Corporation of the city of Ahmedabad and anr.), the Hon’ble Apex Court has observed as under:

¶100

It is true Section 284 N provides that the incorporated provisions of the Land Acquisition Act are subject to the provisions of Chapter XVI and to those contained in Section 284N itself. That is to say, if there is any inconsistency between a provision in Chapter XVI of the Bombay Act or in Section284N itself and that in the Land Acquisition Act, the former will prevail over the grafted provisions of the Land Acquisition Act. This is, however, not to say that where Section 5A is deemed to be part of the Bombay Act, there is a further requirement to show in the Bombay Act an express provision for affording an opportunity of personal hearing. This is the error into which, earlier, the City Civil Judge fell. The heart of Section 5A of the Land Acquisition Act is the hearing of objections and under Sub-section (2) of that section a personal hearing is mandatory provided for. When, therefore, Section 5A of the Land Acquisition Act is applicable under Appendix I of the Bombay Act and there is nothing to show expressly or by necessary implication that the said section or any part of it is excluded under Section 284N or under any other provision in Chapter XVI as a whole the right to personal hearing under the Bombay Act cannot vanish or be defeated.

¶101

We should make it clear that provision for appeal is not a complete substitute for a personal hearing which is provided for under Section 5A of the Land Acquisition Act. This will be evident from a perusal of Clause 3 of Schedule B itself. The character of the appeal contemplated under Clause 3(ii) of Schedule B is only with regard to the examination of the following aspects :-

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(1) whether the order or approval of the plan is within the powers of the Bombay Act, and

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(2) whether the interests of the appellant have been substantially prejudiced by any requirement of this Act not having been complied with. The appeal is confined under Clause 3 of Schedule B to the examination of only the twin aspects referred to above. There is no provision for entertainment of any other relevant objection to the acquisition of land. For example a person whose land is acquired may object to the suitability of the land for the particular purpose acquired. He may again show that he will be at an equal disadvantage if his land and house have to be acquired in order to provide accommodation for the poorer people as he himself belongs to the same class of the indigent. He may further show that there is a good alternative land available and can be acquired without causing inconvenience to the occupants of the houses whose lands and houses are sought to be acquired. There may be other relevant objections which a person may be entitled to take before the Commissioner when the whole matter is at large. The Commissioner will be in a better position to examine those objections and consider their weight from all aspects and

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may even visit the locality before submitting his report to the Standing Committee with his suggestions. For this purpose also a personal hearing is necessary. The appeal court under the Schedule B to the Bombay Act, on the other hand, is not required under Clause 3 to entertain all kinds of objections and it may even refuse to consider the objections mentioned earlier in view of the truncated scope of the hearing under Clause 3(ii) as noted above. We are, therefore, unable to accept the submission that the appeal provided for under Schedule B is a complete substitute for a right to personal hearing and as such by necessary implication ousts the applicability of Section 5A of the Land Acquisition Act.

¶106

In AIR 2004 SC 4307- Union of India and ors. Vs. Mukesh Hans etc etc, while examining the provisions of Sec.5A, the Apex Court held as under:

¶107

“It is cleaar from the above observation of this courlt thaklty right of representation and heaaring contemplated under Sec.5A of theAct is a very valuaable right of a person whose property is sought to be acquired and he should have appropriate agnd reasonable opportunity of persuading the authorities concerned that the acquisition of the property belonging to thakt person should not be made. Therefore, in our opinion, if the appropriate Government decides to take away this minimal right then its decision dto do so must be based on materials on record to support the same and bearing in mind the object of Section 5A.”

¶108

(22 of 24)

¶109

[CW-1071/2011]

¶110

In AIR 1974 SC 1868 (Shri Mandir Sita Ramji Vs. Governor of Delhi and ors.), the Hon’ble Apex Court held as under:

¶111

“5. …..A decision by the government on the objection, when the Collector afforded no opporltunity of being heard to the objector, would not be proper. The power to hear the objecltion under Section 5A is that of the Collector and not of the appropriate Government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a person’s property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the Government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objectyion does not exonerate him from his duty to hear the objector on the objection agnd make the recommendation.

¶112

……. The failure of the Land Acquisition Collector to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. As we said, the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the recommendation. We see no reason why the Division Bench should have departed from the procedure prescribed by the statute. The observance of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser.

¶113

The same view has been followed by Apex Court in (2012) 1 SCC 792 (Raghbir Singh Sehrawat Vs. State of haryana and ors.) whereby it has been held as under:

¶114

“39. In this context, it is necessary to remember that the rules of nature justice have been ingrained in the scheme of Section 5A with a view to ensure thakt before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his lagnd. He can also point out that the land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to

¶115

(23 of 24)

¶116

[CW-1071/2011]

¶117

show that another piece of land is available and the same can be utilised for execution of the particular project or scheme.”

¶118

The provision of personal hearing in Section 5A has been held to be mandatory in the aforesaid case. 36. Thus viewed, once the Land Acquisition Officer had received the objection and the objections relating to the land having been acquired or surrendered in terms of Sec.90B and the scheme having been already proposed and accepted by the UIT for the said land, it was essential for the Land Acquisition Officer to have called upon the petitioner for hearing.

¶119

A look at the report dated 15.4.2009 shows that he has cursorily rejected objections on the face of the fact and his observation that the revenue record was not made available with him even after demanding at the time of taking decision under Sec.5A of the Act. It appears that the proposal has been submitted in haste manner in view of time lapsing as provided under Sec.6A of the Act of 1894.

¶120

Thus viewed the order, this court holds that the objections have not been decided in consonance with the provisions of Sec.5A(2) of the Act of 1894 and the proceedings stand vitiated accordingly.

¶121

During the course of hearing, it was also noticed that the land which was originally proposed for the purpose of construction of link road, did not materialize as informed by the RIICO which was holding the part of land, as well as the State has

¶122

(24 of 24) [CW-1071/2011]

¶123

not accepted the proposed road construction taking into consideration all the aspects of the case as noted above.

¶124

In view of above, the writ petition is allowed and the impugned notification dated 4.5.2009 (Annex.13) is quashed and set aside. No order as to costs.

¶125

(SANJEEV PRAKASH SHARMA),J

¶126

SANDEEP/-31

M/S Connoisseur Develop Pvt. v. State of Raj and Ors.

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M/S Connoisseur Develop Pvt. v. State of Raj and Ors.

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