Modi, J.:— This is a writ application by Shrimati Gyan Devi widow of Bishan Swaroop Garg under Article 226 of the Constitution in an acquisition matter.
2. The material facts leading up to this application may be briefly stated as follows. The dispute between the parties centres around certain agricultural lands bearing Khasra Nos. 49, 50 and 51 measuring 15 odd Bighas situated in village Durgapura, Tehsil Sanganer. The petitioner No. 1 Gyan Devi is the Khatedar of these lands as recorded in Khasra Girdawari Ex. A-2. It appears that there is a ‘Go-Sewa Sangh’ which is a society registered under the Societies Registration Act, 1860 (Act XXI of 1860) and has been functioning for some time at Sanganer. Respondent No. 3 Balwant Singh is its manager. The said Balwant Singh some time in 1959 made an application that agricultural lands bearing Khasra No. 51 in village Durgapura belonged to one Bishan Swaroop deceased and that it was in the possession of a person named Bhonri Lal of Jaipur, this Bhonri Lal is petitioner No. 2 before us and is the Mukhtaraam of Gyan Devi, and that the said Bishan Swaroop had left no legal heirs except his widow and that the latter was untraceable. It was submitted that the land bearing Khasra No. 51 was situated close to the agricultural land of the Go-Sewa Sangh and therefore it may be ordered to be made over to it. This matter was inquired into by the Additional Collector, Jaipur, and Balwant Singh's application was rejected after Bhonri Lal, Gyan Devi's Mukhtar had been examined. The Additional Collector found that Bishan Swaroop had not died heirless, that his widow Gyan Devi was still alive, that she had her ordinary residence in the city of Lucknow and that she had been recorded as Khatedar of the land in question. He was, therefore, of the opinion that the application made by Balwant Singh was frivolous and that the possession of the land could not be ordered to be made over to the Sangh as desired. He further added, however, that if and when the Go-Sewa Sangh applied for the compulsory acquisition of the land in question, necessary action would be taken. This report of the Additional Collector is dated the 3rd August, 1959. (Annexure A). Thereafter some time in 1962 Balwant Singh again moved the Collector Jaipur and the Revenue Ministry of the State for acquisition of the lands in question under the provisions of, the Rajasthan Land Acquisition Act, 1953, (Act No. XXIV of 1953, hereinafter referred to as the Act). It may be pointed out here that the Go Sewa Sangh, inter alia, maintained a ‘Gaushala’ and a cattle breeding centre for supplying quality cattle and milk and for distributing bulls for servicing in villages and allegedly concerned itself with the development of cattle wealth of the country in diverse ways. It was, therefore, represented to the Government that the Sangh wanted the lands in question for performing experiments in the growing of proper kinds of grass for the feeding of cows and bulls maintained by it, and, therefore, the same may be acquired for the purposes of the Sangh. Consequently a notification under S. 4 of the Act (Annexure B) was issued, which was published in the Rajasthan Gazette dated the 9th August, 1962. The petitioner's grievance is that this notice was not served on her as she was living at the material time in Lucknow. Thereafter a further notification under S. 6 of the Act (Annexure C) was issued having been published in the Rajasthan State Gazette dated the 29th November, 1962. According to the petitioner this was also not served on her for the same reason which we have pointed out before. Then a notification under S. 9(3) of the Act came to be issued in the name of the petitioners on the 11th January, 1963. On the 30th January, 1963, the petitioners filed their objections. These objections were to the effect that the notifications issued under sec. 4 and 6 of the Act were improper and illegal and further that there was no purpose for the acquisition of the lands in question and the same were sought to be acquired mala fide. As the enquiry under S. 11 pursuant to the Page: 369notification under S. 9 was concerned with the determination of the compensation only, no enquiry into the validity of the aforesaid objections could be made and the Collector after recording the necessary evidence on the question of compensation made his award and fixed a sum of Rs. 1971/20 as compensation to be paid of the petitioners. The petitioners had in the meantime filed their writ application to this Court originally on the 7th March., 1963, and they preferred an amended application on the 18th April, 1963. Their prayer is that the notifications issued by the Government under secs. 4 and 6 of the Act and the further proceedings taken in consequence thereof be quashed and that the respondents be prohibited from acquiring the lands in question under the provisions of the Act. This application has been opposed by the respondents. From the facts which we have set out above, the main questions that have been pressed for determination by us are these:—
(1) whether the notifications issued by the State under secs. 4 and 6 of the Act are valid according to law
(2) whether the purpose for which the lands in question have been acquired is a ‘public purpose’ within the meaning of the Act?
(3) In any case whether the acquisition in question is vitiated by mala fides?
3. Now before we address ourselves to the points we have set out above, it has to be stated that certain further material was placed before us on behalf of the petitioners as a result of which it clearly transpires that the entire amount of compensation which had been fixed under the award was furnished by the Go Sewa Sangh and a cheque for such amount on the Bank of Rajasthan was given to the Additional Collector, Land Acquisition, Jaipur, for being paid to the petitioners but the latter refused to receive it, and, therefore, the said cheque was sent to the District Judge, Jaipur District, Jaipur (See the Additional Collector's letter No. LA 1891 dated the 8th November, 1963). We called upon the learned Advocate General who appeared for the State before us to let us know if the State had made any contribution out of its funds towards the cost of acquisition of the lands in question, and after making the necessary inquiries from the authorities concerned, he definitely submitted that the contribution of the State towards this acquestion was nil.
4. Having thus cleared the ground, we propose to take up the first question first. Now, it was frankly conceded by the learned Advocate General and, in our opinion, rightly that the acquisition in question was started and accomplished by the State at the instance of the Go Sewa Sangh. It was however contended that it was perfectly competent for the State to do so as the purpose for which the lands were sought to be acquired was a public purpose within the meaning of the Act. It was also submitted before us in this connection that the Go Sewa Sangh being a society under the Societies Registration Act was a company as defined in clause (e) of sec. 3 of the Act. The definition of the expression ‘Company’ as given in this clause is very wide and expressly includes a society registered under the Societies Registration Act, 1860, as adopted to the State of Rajasthan. It was further submitted that inasmuch as these lands were sought to be acquired for a company, it was not at all necessary for the State to pay for them wholly or partly out of the public revenue and that it was and would be perfectly in order if the compensation therefor was being paid by the Company itself.
5. Now while dealing with the question of the validity of the notifications under secs. 4 and 6 of the Act, we shall assume that the lands in question were sought to be acquired for a public purpose, as we do not think that in view of the conclusion to which we have come it is necessary for us to make any considered pronouncement on the validity of this claim.
6. Leaving that question, therefore, apart, the question still remains whether in view of the premises set out above, these notifications can be accepted as being in accordance with law. At this stage, we would like to give relevant extracts from them in so far as they are material for our purpose.
Notification under Sec. 4
Notification under Sec. 6
7. The description of the lands is substantially the same as given in the notification under Sec. 4.
8. The important point that stands out from a reading of these two ratifications is that all that was mentioned therein was that it was necessary for the Government to acquire land for a certain public purpose which was specified therein, to wit, for experimentation in connection with the produce of green grass for the feeding of bulls and milch cows by the Government out of public revenues, and it was nowhere mentioned therein that the lands were sought to be acquired for the purpose of society or a company within the meaning of the Act. Any body reading these notifications could not possibly imagine that the lands were sought to be acquired for the purposes of respondent No. 3 the Go Sewa Sangh and according to the plain meaning of the language used therein it appeared as if the lands were being acquired by the State itself for a certain purpose which it thought was a public purpose within the meaning of the Act. It may be accepted that in the case of an acquisition for a company as defined in the Act, the cost of compensation need not be defrayed wholly or partly by the State but it may be entirely borne by the company, and, therefore, the notifications with which we are concerned would not be bad on the score that the State did not contribute any amount whatsoever towards such acquisition according to the proviso to Sec. 6(1). Even so, they seem to us to suffer from a vital infirmity and that is that they nowhere mention that the acquisition of the lands in question was sought to be made for the purposes of a company namely the Go-Sewa Sangh. For where the State may want such an acquisition to be made for a third party, it is its bounden duty to mention in the Page: 371notifications under secs. 4 and 6 that the land was sought to be so acquired. The reason, to our mind, is clear; for if this information is not supplied it may not be possible for an owner of the land to file the various objections which would be open to it to file in case the land was sought to be acquired for a company as contradinguished from the situation where it is sought to be acquired for public purpose of the State itself.
9. In this connection, we would invite attention to sec. 5-A of the Act which provides for an opportunity for the hearing of objections after a notification under sec. 4 is issued. This section, leaving out its immaterial portion reads as follows:
“Hearing of objections.—
(1) Any person interested in any land which has been notified under sec. 4 as being needed or likely to be needed for public purpose or for a company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under sub-sec. (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the State Government together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the State Government on the objections shall be final,”
(The Italic is ours)
10. We may as well quote sec. 6(1) and (3) of the Act here:—
“Declaration that land is required for a public purpose.—
(1) Subject to the provisions of Part VII of this Act, when the State Government is satisfied after considering the report, if any, made under sec. 5-A, sub-sec. (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to Government or of some officer duly authorised to certify its orders
(2) Provided that no such declaration shall be made unless the compensation to awarded for such property is to be paid by a company, or wholly or partly out of public revenue or some fund controlled or managed by a local authority.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be, and, after making such declaration, the State Government may acquire the land in the manner hereinafter appearing.”
11. Reading secs. 4, 5-A and 6 together, we have no hesitation in coming to the conclusion that where a State seeks to acquire the land of another under the Act, it must mention in the notifications both under secs. 4 and 6 whether it intends to do so for a company or otherwise and where it fails to mention to give this information and issues a notification which prima facie indicates as if it intends to acquire such land for its own purpose, though it really intends to do so for the purpose of a company, then such a notification would be bad in law and would lack the essential foundation for which acquisition under the Act could be undertaken.
12. In support of the view which we have felt persuaded to take, we would refer to the decision of the Supreme Court in Shyam Behari v. State of Madhya Pradesh (1). That is a case which seems to us to be practically on all fours with the present case and perhaps the case before us is somewhat stronger. The validity of a notice under sec. 6 came up for challenge there, which notification stated that the State Government was satisfied that the land, described in the annexure to the notification was required for a public purpose, namely, for the construction of buildings for godowns and administrative office, but the notification did not say that the land was required for a company. Thereafter the State Government issued a further notification under sec. 17(1) read with sec. 174) of the Act in which it was stated that the land was required for a purpose namely “for the Premire Refractory Factory and work connected therewith”. The High Court of Madhya Pradesh held that the substance of the two notifications referred to above showed that the land was being required for a public purpose as well as for the purpose of a company and it further held that in so far as the declaration spoke of the acquisition of land for a public purpose, it was ineffective; but as the land was sought to be acquired for a company, the notification looked at in its substance was in order. The Supreme Court over ruled this view and held that in order that a notification under sec. 6 was to be valid in the circumstances of the case, it had to declare that the land was needed for a company and that no valid notification under that section could be made declaring that the land was needed for a public purpose, for no part of compensation was to be paid out of public revenues or some fund controlled or managed by a local authority. It was further observed that when the two notifications Page: 372declared that the land was needed for a public purpose in a case where no part of the compensation was to come out of public revenues or some fund controlled or managed by a local authority, they were invalid in view of the proviso to Sec. 6(1) of the Act, and all proceedings following on such notifications, would be of no effect, under the Act.
13. In view of this statement of the law, the conclusion to our mind ??? irresistible that the notification issued in the present case under S. 6 which utterly failed to state that the lands mentioned in the notification were sought to be acquired for a company and when no part of the compensation was to come out of the public exchequer was bad in law and would not be a valid foundation for any further proceedings under the Act. In our view, the same considerations would lead to the result, of any such notification under S. 4 of the Act to be equally bad.
14. When once we come to this conclusion, we cannot but hold that all further proceedings taken in pursuance of these notifications were wholly ineffectual in law.
15. It was brought to our notice by the learned Advocate General that under S. 6(3) of the Act, a declaration made by the Government that a particular land was needed for a public purpose was conclusive evidence that the land was so needed or that it was needed for a company and, therefore, it was not open to the courts to go behind such a declaration. This argument is all right, so far as it goes; but the law is well settled at this date that to this rule there is an exception and that exception is that if there is a colourable exercise of power by the State in the circumstances of a particular case, the declaration will be open to challenge at the instance of the aggrieved party, and, therefore, if it appears that what the Government is satisfied about is not a public purpose of its own but the purpose of a company, then the action of the Government would be colourable or mala fide and its declaration would be a nullity, and to such a declaration the protection of S. 6(3) would not stand. Reference may be made in support of this proposition to the high authority of our own Supreme Court in Somawanti v. State of Punjab (2).
16. As we have pointed out above, the notifications issued by the Government in the present case indicated as if it was intending to acquire the lands in question for a public purpose or purposes of its own out of public revenues, and yet it has been conceded-before us by the learned Advocate General appearing for the State that throughout the intention of the Government was to acquire these lands for respondent No. 3 the Go-Sewa Sangh, even though this specific purpose was not at all disclosed in the notifications for reasons best known to the Government. Under the circumstances it also seems to us that the notifications in question are bad being a colourable exercise of the power vested in the State under secs. 4 and 6 of the Act. We hold accordingly.
17. In view of the conclusions to which we have come on the first and the third points formulated by us above, we do not consider it necessary to give any finding as to whether the lands in question were really required by the State for a public purpose within the meaning of the Act for the purposes of our present decision.
18. Before we conclude our judgment, we may refer to a preliminary objection which was raised by the learned Advocate General but which we were not inclined to allow to be raised at the present stage. That objection is that the petitioner Gyan Devi, widow of Bishan Swaroop had no locus standi to file the present writ application, inasmuch as she was not the owner in law of the lands in dispute. It was submitted before us in this connection that the lands covered by Khasra Nos. 49, 50 and 51 originally belonged to one Gopichand Gulabchand who transferred them to Bishah Swaroop husband of Gyan Devi. The latter died some time in 1950 leaving behind him the petitioner and three sons Om Prakash, Chandra Prakash and Suraj Prakash. The contention of the learned Advocate General is that on the death of Bishan Swaroop, his three sons succeeded to his estate and his widow had no right to any part of it including the agricultural lands in dispute in the present case and consequently it is his sons who could have maintained any writ petition questioning the acquisition of the said lands but not the widow. By an application dated the 30th August, 1965, it was, therefore, prayed that the respondent State be Page: 373allowed to amend the reply originally filed by it to the petitioners' writ application and to add a plea that neither Gyan Devi nor her Mukhtar Bhonrilal was entitled to maintain the present writ petition. It was also prayed that the State be allowed to produce evidence in support of its plea. In our order-sheet dated the 4th November, 1965, we observed that it would be convenient to consider this application at the time of the arguments in the main case and this is how the matter was raised before us at the time of the hearing of this case. On a careful examination of the point which was sought to be raised before us, we have not felt persuaded to entertain this objection. The principal reasons which have led us to come to this conclusion are these. In the first place, in its reply to paragraph No. 1 of the petitioners' writ application wherein the petitioner No. 1 had stated that she was the Khatedar of the agricultural lands of Khasra Nos. 49, 50 and 51 measuring 15 Bighas and 4 Biswas situated in the village Durgapura Tehsil Sanganer and that the same were managed by her Mukhtar Bhonrilal petitioner No. 2, all that was contested was the area of these Khasra numbers but it was clearly accepted that the petitioner No. 1 was the Khatedar of the agricultural lands covered by the Khasra numbers in question. As for the fact whether Bhonrilal was the agent of Gyan Devi or not, it was further stated that the respondent State was not aware of that fact. There was, therefore, a clear admission in the State's own pleading that petitioner No. 1 Gyan Devi was the Khatedar of the agricultural lands covered by Khasra Nos. 49, 50 and 51. What the respondent State seeks to do by its amended application is to go back on this admission. In the second place, we should like to point out that the objection which the State now seeks to raise is being raised for the first time. It was nowhere suggested at any stage during the course of the acquisition proceedings before the authorities below that the petitioner Gyan Devi had nothing to do with the lands in question and that she had, therefore, no locus standi to claim compensation or raise any other objection with respect thereto. To allow this plea to be raised at the present stage would be to permit the respondent State to come forward with an entirely new case. We are definitely of the opinion that to such an indulgence the State cannot be held entitled. In the third place, the case which is sought to be raised by the State is a mixed question of law and fact, and in order to be able to come to a definite conclusion one way or the other, it would be necessary for us to emba on rkan inquiry into the facts. This we are not prepared to do in the course of the present writ application and at any fate at this stage of it. For, ought we know, if the present contention had been raised by the State or the remaining respondents at the proper stage, it should have been perfectly possible for the petitioners to bring material on the record to show that Shrimati Gyan Devi was lawfully entitled to have been recorded as the Khatedar of these lands in the revenue records of the State. In these circumstances, we have definitely come to the conclusion that we should not permit the State to raise this preliminary objection at the present stage and we are of the view that on such material which already exists on the record, Shrimati Gyan Devi, recorded as she is as the Khatedar of these lands, has sufficient interest therein to enable her to maintain the present writ application. We hold accordingly.
19. The result is that we partly allow this application and hereby quash the notifications under sections 4 and 6 of the Act referred to above and with the quashing of these notifications, all further proceedings taken in consequence thereof must fall asunder. The petitioner will have one set of costs from the State.
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