Kuber Grih Nirman Sahakari Samiti Maryadit vs The State of M.P. and Others

Satish K. Agnihotri, J.—The petitioner seeks to quash the award dated 18.05.1990 (Annexure P/7) to the extent of acquisition of the land bearing Khasra No. 83/35, Patwari Circl no. 104, in village Danganiya, District Raipur. The brief facts, in nutshell, are that the petitioner was initially registered as Karmachari Grih Nirman Sahakari Samiti Maryadit, Rohinipuram, Raipur, as a housing cooperative society under the, provisions of Cooperative Societies Act, 1960. The petitioner-Society purchased a parcel of land, which is disputed property in the instant petition, from one Vishal son of Govind Sahu, by a registered sale deed dated 4.10.1983 (Annexure P/ 1) to the extent of 1856 sq.mts., bearing Khasra No. 83/18.

The land in question was mutated in the name of the petitioner by order dated 25.04.1984. Thereafter, the said plot was renumbered as Khasra No. 83/35 from 83/18 (Annexure P/2). The petitioner-Society applied for approval of its layout plan before the Town and Country Development Department. The Joint Director, Town & Country Development Department, Raipur approved the layout plan for Khasra No. 83/18 (new Number 83/35) by order dated 17.12.1985 (Annexure P/3) alongwith other Khasra numbers. The plot in dispute was divided amongst eight persons and possession of the plots thereafter was handed over to them. The State Government issued a notification u/s 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act, 1894'') to acquire the land admeasuring 44.27 acres of village Danganiya, situated at Patwari Halka No. 104 for the purpose of housing scheme under HUDCO. On the same date, a declaration was published u/s 6 of the Act, 1894 (Annexure P14) in the official gazette detailing the Khasra numbers, area in hectare and acres. There was no mention of the plot of the petitioner bearing Khasra No. 83/18(old number) or 83/35 (new number). The said notification provided for dispensing with the procedure laid down u/s 5(A) of the Act, 1894 and further intention to take steps u/s 17 of the Act, 1894 for taking of possession of the land in case of emergency. The petitioner-Society was, thereafter, not noticed at any stage of time, except on 11.05.1990 (Annexure P/5), intimating the petitioner-Society the compensation determined and assessed at Rs. 54,053/- and to appear on 23.05.1990 to collect the compensation amount. The said notice was never sent to the petitioner-Society and in fact, the same was collected by the Vice Chairman of the petitioner-Society without intimation to the Society. It is informed that the said notice was received even by the Vice Chairman on 03.07.1990. The Land Acquisition Officer, passed the final award on 18.05.1990 (Annexure P/7) wherein at item No. 23, Khasra No. 83/35 was, for the first time, mentioned in the list of the land acquired and compensation determined. Thus, the petition was filed immediately on 25.08.1990.

Shri A.K.Prasad, learned counsel appearing for the petitioner-Society would submit that there was no occasion to challenge the validity and legality of the notifications u/s 4(1) and 6 of the Act, 1894 as there was no mention of the property in dispute in declaration dated 16.02.1989 (Annexure P/4). There was no khasra number mentioned, either old or new, which came into existence after the sale of the property in favour of the petitioner society and mutation was directed on 25.04.1984. Thus, the acquisition and award falls on the ground as the respondent authorities have failed to comply with the mandatory requirement of publication of notice and declaration, which precede the acquisition of land by passing the award.

On the other hand, Shri Sanjay Patel, learned counsel appearing for the respondent-No. 6, Chhattisgarh Housing Board, would submit that the land in dispute was numbered as Khasra No. 83/6 at the time notification u/s 4 and 6 of the Act, 1894 was published on 16.02.1989. A person, namely; Harishankar Madariya, who was in the immediate neighbourhood of the petitioner-Society, had purchased a parcel of the same land from Vishal on 12.10.1983 appeared before the Land Acquisition Officer and raised objection with regard to notifications. His land was also acquired and compensation to that effect had already been paid to him. Shri Patel would further submit that Khasra No. 83 of 35 was not in existence in the revenue records till the date of notification and original Khasra Number 83/6 area 1.54 hectares was notified in the notification. Re-numbering of Khasra numbers took place after notifications were issued and thereafter, in the award, Khasra Number 83/35 was rightly indicated after determining the compensation. Thus, the petitioner-Society cannot raise objection at this stage after award has been passed. In support of his contention, Shri Patel would rely on the decision of the Supreme Court in May George v. Special Tahsildar & Others, 2010 AIR SCW 3475, Swarna Lata etc. v. State of Haryana & Others, 2010 AIR SCW 2669, Smt. Gian Kaur Suri & Etc. v. U.O.I. & Others, AIR 2005 Del 394 Ramniklal N. Bhutta and another Vs. State of Maharashtra and others,

Shri A.V.Shridhar, learned Panel Lawyer appearing for the State/ respondents No. 1,2,4 and 5 would adopt the submission made by learned counsel appearing for the respondent No. 6.

The application for intervention, filed by the intervenors viz. Jaiprakash Chandravanshi, S.K.Parganiha and Smt. Saroj Kannoje, was allowed on 21.06.2007, by this Court. Shri V.G. Tamaskar, learned counsel appearing for the intervenors would support the submissions made by learned counsel for the petitioner and would submit that the intervenors are the subsequent allottees of the plots in the property dispute.

Having heard learned counsel appearing for the parties perused the pleadings and documents appended thereto, it appears that the land in question was purchased by the petitioner society by a registered sale deed dated 04,10.1983 (Annexure P/1). In the sale deed, Khasra number mentioned was 83/18 wherefrom a portion admeasuring 1856 sq.mts. was sold to the petitioner-Society. Thereafter, the revenue records (Annexure P/2) indicates mutation in the name of the petitioner-Society and the plot was re-numbered as Khasra No. 83/35 by order dated 25.04.1984. A notice dated 11.05.1990 issued by the Land Acquisition Officer also indicates Khasra number 83/35 which appears to have been received on 03.07.1990, after passing of the award.

The details of the property shown in the sale-deed reads as under:

On perusal of the award, it is nowhere found that there was either any reference of the change of Khasra number from 83/6 to 83/3 5 except in the list of land details and compensation determined for the same for the first time at serial No. 23, Khasra No. 83/35 admeasuring 0.46 was mentioned with compensation to the tune of Rs. 54,053/-.

Contention of Shri Patel in respect of the aforestated facts is not supported by any documents. Rather, the contention of the petitioner appears to be fully supported by the revenue records produced by the petitioner.

Shri Patel relies on a report dated 12.01.1991 of the Patwari, Patwari Halka No. 104 (Annexure R/8), which is as follows. Khasra Number as under:

Argument of Shri Patel that the original Khasra No. 83/6 was divided and re-numbered as 83/6,83/35 after issue of notification is contrary to the facts as aforestated in the sale deed (Annexure -- P/1) revenue records (Annexure P/2) duly approved by the revenue officers. Thus, it cannot be held that the Khasra No. 83/35 came into existence only after publication of the notifications u/s 4(1) and 6 of the Act, 1894. Even in the year 1984 when the sale took place, the sale deed clearly mentioned Khasra No. 83/18 and after sale of a portion of Khasra No. 83/18, it appears, was renumbered as khasra No.83/35.

Further submission of Shri Patel that Harishankar Madariya who was immediate neighbour of the petitioner has approached the Land Acquisition Officer, thus, the petitioner knew about the land acquisition proceeding, does not merit acceptance. When there was no reference of Khasra No. 83/18 (old number) or 83/35 (new number), it is common practice to take a view that the land wherein housing society has already constructed the plots, might have been left out in the acquisition. After passing of the award, it is evident that the land has not vested in the State as this Court, by order dated 14.09.1990, directed that "petitioner''s possession was not to be disturbed". There is no dispute that the petitioner and its members are continuing in possession today.

Section 4 and section 6 of the Act, 1894 are mandatory as publication of preliminary notification u/s 4(1) reads that "a notification to that effect shall be published in the Official Gazette". Section 6(2) also provides that every declaration shall be published in the official gazette. Even otherwise, it is not the case of the respondents that publication of notice u/s 4(1) and publication of declaration u/s 6 of the Act, 1894 are not mandatory and the defect can be cured subsequently by affording an opportunity of hearing to the land owners even after passing of the award.

In May George (supra) relied on by Shri Patel, there was no dispute with regard to mention of the land u/s 4 and 6 notification. The objection was with regard the purpose of notification. Thus, the ratio laid down by the Supreme Court, in the said case, is not applicable to the facts of the case on hand as notification and challenge to the award was made in the year 1986, passing of the Award on. The Supreme Court held that the validity of the issuance of notification u/s 9(3) would not adversely affect the subsequent proceedings including the award after land vested in the State free from all encumbrances which cannot be divested even if there is some irregularities in the acquisition proceedings. The facts of the instant case are different and as such, the same is not applicable to the case on hand.

In Swarnalata etc. (supra) the question was with regard to publication of declaration u/s 6 of the Act, 1894 not in a newspaper having wide circulation. In the case on hand, there was no publication of notice u/s 4 and u/s 6 of the Act, 1894 in respect of the land in dispute at any stage when it is well settled that publication of notice u/s 4(1) and declaration u/s 6 are mandatory in nature. Further, the case of Gian Kaur Suri (supra) is also not applicable to the facts of the case.

In Ramniklal N. Bhutta (supra) there was a proper publication of notice u/s 4 and 6 and as such, the same is not applicable to the facts of the instant case.

In Madhya Pradesh Housing Board v. Mohd. Shaft & Others, (1992) 2 SCC 165 the impugned notification u/s 4 was held to be mandatory and the same was held vitiated on account of being vague and for noncompliance of the mandatory requirement of the Act, 1894. In the case on hand, it was not only vague by way but there was no mention about the land in dispute either by way Of old khasra number or new khasra number which admittedly was in existence before publication of notification and declaration u/s 6 of the Act, 1894. Thus, the entire proceeding in respect of Khasra No. 83/35 (new number) and 83/18 (old number) is vitiated. In Mohd. Shafi & Others (supra) the Supreme Court observed as under:

It is settled law that the process of acquisition has to start with a notification issued u/s 4 of the Act, which is mandatory, and even in case of urgency, the issuance of notification u/s 4 is a condition precedent to the exercise of any further powers under the Act. Any notification which is aimed at depriving a man of his property, issued u/s 4 of the Land Acquisition Act has to be strictly construed and any serious lapse on the part of the acquiring authority would vitiate the proceedings and cannot be ignored by the courts. The object of issuing a notification u/s 4 of the Act is twofold. First, it is a public announcement by the government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the government for the "public purpose" mentioned therein; and secondly, it authorizes the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned Section 4(2) of the Act.

The Supreme Court in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and Others, observed as under:

Although assignment of reasons is the part of principles of natural justice, necessity thereof may be taken away by a statute either expressly or by necessary implication. A declaration contained in a notification issued u/s 6 of the Act need not contain any reason but such a notification must precede the decision of the appropriate Government. When a decision is required to be taken after giving an opportunity of hearing to a person who may suffer civil or evil consequences by reason thereof, the same would mean an effective hearing.

The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharma observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand v. State of Rajasthan and CCE v. Orient Fabrics (F) Ltd.]

There cannot, therefore, be any doubt that in a case of this nature due application of mind on the part of the statutory authority was imperative.

Section 6 of the Act, 1894 i.e. declaration that land is required for a public purpose are in two parts. Under sub-section (1) there should be a satisfaction of the State Government under the signature of a Secretary to the State Government and thereafter, the satisfaction detailing the lands khasra numbers shall be published in the official gazette under sub-section (2) of Section 6 of the Act, 1894.

In the case on hand, by omitting the old khasra number i.e. 83/18 or new khasra number i.e. 83/35, which came into existence prior to issuance of notification u/s 4, in the declaration u/s 6 of the Act, 1894, it is clear that the State Government was not satisfied with the acquisition of the said piece of land. Compliance of provisions of Section 6 of the Act, 1894 is mandatory. For want of compliance of the mandatory provision, the proceeding in respect of land in dispute is vitiated.

Applying the well settled principle of law to the facts of the case on hand, and for the reasons stated hereinabove, the acquisition proceeding of the land in dispute bearing Khasra No. 83/35 (new number) and 83/18 (old number) purchased by the petitioner-Society and thereafter, allotted to the members of the society is quashed. The writ petition is allowed to the above extent. There shall be no order as to costs.