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TMI Blog1993 (1) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan Gazette dated 13.1.1982, proposed to acquire a total extent of 2,.517 bighas (approximately equal to 1,580 crores) for the benefit of the Rajasthan Housing Board. On 9.2.1982, another notification was issued under Section 17(4) of the said Act dispensing with the provisions of Section 5(A). On the same day, a declaration under Section 6 was also issued in respect of the said area. According to the Government, the possession of the land was also taken on 22nd and 24th of May, 1982. The validity of the said notifications was questioned in the batch of writ petitions (being S.B. Civil Writ Petition No. 707 of 1982 etc.) on three grounds viz., (i) that the land acquired was not a waste or arable land inasmuch as there were pucca and kutchha houses, huts and cattle sheds etc. On the said land. If so, the power under sub-section (1) and sub-section (4) of Section 17 could not have been invoked to dispense with the enquiry under Section 5(A); (ii) that there was no real urgency warranting the invocation of urgency clause. An inquiry under Section 5(A) ought to have been held, which is a valuable right given to the land- owners whose land is acquired under the Act; and (iii) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion that merely because on a small portion of the land proposed to be acquired there were pucca and kutchha houses, the invocation of power under Section 17(4) read with Section 17(1) of the Act was not bad. The opinion of the majority Judges is questioned in these appeals before us. Sri Soli Sorabji, learned counsel for the appellant (State of Rajasthan) submitted that the question considered by the Fun Bench of the High Court is since concluded by a decision of this court in State of U.P. v. Smt. Pista Devi, [1986] 4 S.C.C. 251 and, therefore, the appeals must be allowed straightaway. On the other hand, S/Sri D.D. Thakur and S.K. Jain, learned counsel for the respondent-writ petitioners submitted on the basis of the decision in Sarju Prasad Saha v. The State of Uttar Pardesh, A.I.R. 1965 S.C. 1763 that once it is found that a portion of a land proposed to be acquired is not waste or arable, the entire notification should fail inasmuch as the notification is not severable. They also submitted that the decision in Dom Phalauli v. State of Punjab and Ors., [1979] 4 S.C.C. 485 supports their contention that the notification under Section 17(4) read with Section 17(1) shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that in the large extent of land Acquired which has about 412 acres there were some buildings here and there and so the acquisition of those parts of the land on which buildings were situated was unjustified since those portions were not either waste or arable lands which could be dealt with under Section 17(1) of the Act. This contention has not been considered by the High Court. We do not, however, find any substance in it. The government was not acquiring any property which was substantially covered by buildings. It acquired about 412 acres of land in the outskirts of Meerut city which was described as arable land by the Collector. It may be true that here and there were a few super-structures. In a case of this nature where a large extent of land is being acquired for planned development of the urban area it would not be proper to leave the small portions over which some super- structures have been constructed out of the development scheme. In such a situation where there is real urgency it would be difficult to apply Section 5-A of the Act in the case of few bits of land on which some structures are standing and to exempt the rest of the property from its application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith enquiry under Section 5(A) by invoking the urgency clause in Section 17(4) was bad. Paragraph (9) relied upon by the learned counsel may now be set out. It reads: One other point raised at the Bar may be briefly referred to. It was contended by Mr. S.P. Sinha appearing on behalf of the Municipal Board, Basti, that a part of the land notified for acquisition was waste or arable and in support of his contention, counsel referred us to certain revenue record. But if only a part of the land is waste or arable and the rest is not, a notification under S. 17(4) dispensing with compliance with the requirements of S. 5-A would be invalid. It would not be open to the Court to regard the notification as partially good and partially bad, for if the State had no power to dispense with the inquiry in respect of any part of the land notified under S.4(1), an inquiry must be held under S.5-A giving an opportunity to persons interested in the land notified to raise their objections to the proposed acquisition and in that inquiry the persons interested cannot be restricted to raising objections in respect of land other than waste or arable land. We do not think that in a case where only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not state that the government is of the opinion that it was a case where the inquiry under Section 5-A ought to be dispensed with under Section 17(4). It is in that context that they also pointed out that the notification does not recite that the land is waste or arable. Section 17(4) does not require that notification itself should recite the fact that the land concerned is waste or arable. In such a situation there is no basis for the respondent's contention that the notification should itself recite the said fact nor does the said decision support their contention. Sri Thakur further argued that the construction of houses by Housing Board is not of such urgency as to call for the invocation of the said power. We are not satisfied. Firstly, on this question the decision of the Rajasthan High Court is against the writ petitioners. The learned Single Judge negatived it as well as Division Bench following the opinion of the third Judge. Secondly, we are satisfied that there was material before the government in this case upon which it could have and did form the requisite opinion that it was a case calling for exercise of power under Section 17(4). The learned Single Judge ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shing of the notification under Section 17(1), quashing of the notification under section 17(4) as well as the declaration under Section 6. It is prayed that the acquisition proceedings must be declared to have been withdrawn by virtue of the order of the Hon'ble Housing Minister of Rajasthan dated 20th July, 1984. Before us, however, Sri D.D. Thakur, learned counsel for the petitioner urged only one contention viz., that by virtue of the decision of the Minister in-charge of Urban Development, Government of Rajasthan and the Chief Minister dated 8.2.1990 the Rajasthan Government must be held to have withdrawn from the said acquisition proceedings within the meaning of Section 48 of the Land Acquisition Act, 1894 in so far as the lands purchased by the petitioner-society are concerned. For a proper appreciation of this contention, it is necessary to notice the relevant facts and circumstances in their sequence. The notification under section 4(1) was published on 12.1.1982. On 9.2.1982, the notification under section 17(4) and the declaration under section 6 were issued. According to the government, possession was also taken of the entire extent of land on 22nd and 24th of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of prescribed amount. The said policy may be applied to the petitioner-society. As far as the question of exemption from urban land ceiling is concerned, all the plot holders of this society, like other societies, will hand over their plots to the Jaipur Land Authority and it shall be deemed to be the government land but will be re-allotted to the same plot holders after charging the fixed price and development charges on prescribed terms. This procedure is being followed by Jaipur Development Authority in other matters as well. In this way, the problem of exemption from the urban land ceiling would also be solved. The final recommendation was: 'looking to the aforesaid facts it is desirable to direct to de-acquire that land of the scheme under the provisions of section 48 of the Land Acquisition Act, 1894 and regularise the scheme because this society is fulfilling the same public purpose of housing by starting proceedings for which the Housing Board wants to acquire this land later on for this purpose. he above recommendation was accepted by the Chief Minister on 8.2.1990 as stated hereinbefore. It appears that the matter again came before the Hon'ble Chief Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 29.2.90 Copy to the secretary, New Pink City Grah Nirman Sahkari Samiti Ltd., Bapu Bazar, Jaipur for information. He may kindly intimate as to within what period of time the amount of Development charges and cost of land etc. will be deposited. sd/ Dy. Secretary to the Govt. 28.2.90 The learned counsel for the writ petitioners stops here and says that the above proceedings constitute a definite and final decision to de-notify and de-acquire the lands and that nothing more was required to be done to constitute withdrawal from acquisition within the meaning of section 48. Sri F.S. Nariman, the learned counsel appearing for the government of Rajasthan, however, filed an additional affidavit setting out the developments subsequent to the aforesaid letter dated 24.2.1990 which may now be noticed. The additional affidavit is sworn to by the Secretary, Rajasthan Housing Board, Sri M.K.Khanna. It is stated that in response to the aforesaid letter dated 24.2.1990, the Rajasthan Housing Board represented to the Government that the land should not be de-notified whereupon the Secretary, urban Development and Housing ordered the stopping of the issuance of notification for de-ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said tentative decision was reversed. In this view of the matter, it is not necessary for us to go into the question whether there was a communication of the 'decision' of the government to the petitioner. The communication must be of a final decision and not of a provisional or tentative decision. We are of the further opinion that in any event the government could not have withdrawn from the acquisition under section 48 of the Act inasmuch as the Government had taken possession of the land. Once the possession of the land is taken it is not open to the government to withdraw from the acquisition. The very letter dated 24.2.1990 relied upon by the counsel for the petitioner recites that 'before restoring the possession to the society the amount of development charges will have to be returned back.This shows clearly that possession was taken over by the Housing Board. Indeed the very tenor of the letter is, asking the Housing Board as to what development work they had carried out on the land and how much expenditure they had incurred thereon, which could not have been done unless the Board was in possession of the land. The Housing Board was asked to send the full pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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