Manohar Lal Chadha and Another vs The Himachal Pradesh Mineral and Industrial Development Corporation, etc.

C.R. THAKUR, J.—This is a petition filed by Manohar Lal Chadha and another under Article 226 and 227 of the Constitution for quashing the orders, contained in Annexures D, E, F, G and H in the following circumstances.

The property covered by khasra numbers 116/1, 116/2, 116/3 and 116, measuring 1131 sq. yards and 6 sq. feet situate in Station Ward, Chhota Simla, is owned by the Petitioners. On this land there are two temporary servant sheds and an open plot of Tennis Court. This property was earlier owned by Harbans Lal of M/s Sikand and Co., 50 Janpath, New Delhi. It was purchased by the Petitioners from the earlier owner on 5th February, 1974, and 7th February, 1974, in two lots by two separate registered deeds, Annexures A and B, for a consideration of Rs. 30,000/- and after the purchase the Petitioners are in possession of the property. The Petitioners, who reside in Delhi, learnt that the possession of the property was being taken and on that they came to Simla and here they learnt about the acquisition proceedings in respect of the property taken by Respondent 2 for Respondent 1. The Petitioners have alleged that from the files of Respondent 2 it appeared that Respondent 2 had issued a notification, Annexure D, for acquisition of the property mentioned in para 1 for Respondent 1 for purposes of construction of offices. The file shows that there was nothing before the Governor to form an opinion that the land was required for the purpose stated in Annexure D. It was further contended that no notice as envisaged u/s 4 of the Land Acquisition Act (hereinafter called the Act) was pasted at the spot or served on any body including the Petitioners. From the inspection of the file, according to them, it appears that notification u/s 5A was issued and sent to the Harbans Lal under registered cover at his Delhi address but there is no endorsement on behalf of the postal authorities as to why it was not delivered. Further that no notice was pasted at the land in dispute. On the assumption that there was a proper service, Respondent 2 came to the conclusion that no objections had been preferred and, therefore, he issued a notification u/s 6 of the Act on 17th July, 1975 (Annexure E to the petition) and which was also not served on the Petitioners or anybody else. It appears from the file that Respondent 2 treated Ved Parkash Akre, Smt. Braham Kumari,Umesh Akre, Usha Waha and Uma Akre as the owners and treated that Himland Hotel existed on the land in dispute. Respondent 3 had on 15th August 1975 decided that the land was urgently required and directed that the Collector may on the expiry of 15 days from the publication of the notice u/s 17(1) of the Act take possession of the waste and arable land before the award was made. It had been mentioned in the notification, Annexure F, that the Governor had already accorded sanction as required u/s 39 of the Act and the requisite agreement u/s 41 had already been executed.

Notice u/s 9 of the Act was issued on 22nd October, 1975, to Baldev, Om Prakash, Har Gopal, Pushpa, Dehlu, etc. but no notice was sent or served on the predecessors-in-interest of the Petitioners or the Petitioners and that the notice issued and served u/s 9 to the persons who had got absolutely nothing to do with the property in dispute is not valid. It so appears, according to the Petitioners, from the file of Respondent 2 the notice u/s 9 could not be issued as the address of the owners was not known.

Now it appears that an agreement was executed on 17th October, 1975 between Respondents 1 and 3 (copy Annexurue J) but from Annexure F which is a notification u/s 17 it appears that the agreement had been executed whereas the agreement itself was executed on 17th October, 1975. The file also shows that the possession had been handed over by Respondent 2 to the Administrative Officer of Respondent 1 which is a limited company. The land has been acquired for Respondent 1, which, as already stated before, is a company and for that compliance with Part VII of the Act is mandatory. It appears from the agreement, Annexure G, that whole of the amount is to be paid by Respondent 1 and, therefore, it cannot be called an acquisition for public purposes at public expense, which has now been given by the Respondents in the notification u/s 4 of the Act, and therefore, the Petitioners have assailed and prayed for quashing of these Annexures D, E, F, G and H on the following grounds.

Since the land is acquired for Respondent 1 who is to bear the whole of the expense, and hence Annexure D is illegal and extraneous to the object of acquisition. This notification suffers from non-application of the mind. There was nothing before the Governor while issuing notification u/s 4 on the basis of which he could have come to the conclusion that the land was sought to be acquired for public purposes and at public expense. Since there was no material before the Governor on the basis of which he could have come to the conclusion that the land was required for public purpose at public expense and, therefore, the power exercised u/s 6 is fraudulent and colourable exercise of powers vested in the Governor. There has been no enquiry as envisaged u/s 5A and, therefore, neither the notification u/s 6 nor any acquisition could be made under Part VII of the Act. There was no enquiry either u/s 40 or 5A which is a sine qua non for exercising powers u/s 6 and 7 of the Act. Since no notices under Sections 4, 6 or 9 of he Act had been either served personally or by substituted service on the Petitioners or on their predecessors-in-interest, there had been violation of Section 45 of the Act and whole the proceedings are liable to be struck down.

It was further pleaded that notification u/s 6, dated 17-10-1975 notification u/s 17(1) dated 15-10-1975, and agreement executed on 17-10-1975 are all in violation of Section 39 of the Act. Before the issue of notification under Sections 6, 9 and 17 neither any agreement was executed nor any consent of the appropriate Government was obtained. Further the power exercised u/s 17 of the Act for taking possession without making award is absolutely wrong and illegal in respect of the land which is waste and arable land and that the present land is not of the kind and as such the action of the Respondents is in violation of Section 17(1) of the Act. The Petitioners have been deprived of their property without the process of law, hence their fundamental rights have been infringed.

The Respondents pleaded that the names of the Petitioners were not in the jamabandi and the Collector did not know that they were owners and that there was no mutation in favour of the Petitioners and, therefore, the service on the Petitioners could not be effected. A public notice had been given to all parties concerned in accordance with law and, therefore, there was no necessity for issuing individual notices to the Petitioners. It was averred that the Respondents had taken the possession on 20-1-1975 in accordance with law. The Governor had satisfied himself from the file in the Himachal Pradesh Secretariat with regard to the requirement of land for Respondent 1 and, therefore, the publication of the notification in the gazette was a sufficient proof of its having been published. Moreover notice u/s 5A was served on the known interest-holders. From a note on the jamabandi it appeared that the land was purchased by one Harbans Lal of Messrs Sikand and Co., 50 Jan path, New Delhi, and accordingly on the basis of the entry notice u/s 5A was sent to that person under registered post, which was received back with the endorsement: "No ''Harbans Lal'' at Sikand and Co., 50, Janpath, New Delhi". Therefore, the Collector and the Governor were satisfied with the issue of a registered letter and its non-delivery is a sufficient proof of the service having been duly made. The declaration under Sections 6 and 7 was issued after due consideration. It was denied that the notification, Annexure D, was issued on 15-10-1975, on the contrary it was averred that the same was issued on 18-10-1975, copy of which is Annexure R-l. Prior to that notification an agreement, as envisaged u/s 39 of the Act, was executed between Respondents 1 and 3 on 17-10-1975, copy of which is Annexure R-2. So, there was full compliance with the requirements of Sections 39 and 40 of the Act. It was on the information of the Inspector of Tax Department of the Municipal Corporation that Baldev, etc. were owners and, therefore, notice u/s 9 was issued to them besides Harbans Lal No individual notice is required under the law and there has been sufficient public notice. All the grounds taken by the Petitioners for quashing the notifications, Annexures D, E, F, G and H were not valid according to the reply filed by the Respondents and they pleaded that all these notifications were quite legal. It had also been averred that the company (Respondent 1) is wholly a Government unit and whatever has been done by both the parties has been done in accordance with law. It was further averred that the land is recorded in the jamabandi as Ghair Mumkin and this entry by itself was sufficient to issue a notification as envisaged u/s 17 of the Act.

Respondent No. 1 also filed a similar reply.

The Petitioners in their rejoinder reiterated the stand taken in the petition. However, in respect of the preliminary objection with regard to the non-existence of the entry in the name of the Petitioners in the jamabandi it was averred that it was a transfer by a registered document in their favour and under the Indian Registration Act it is a notice of transfer and of the ownership of the transferee with regard to that land. It was the legal duty of the Respondents to have taken notice of the transfer by registration of the property in dispute and in not doing so they have acted at their own risk.

The first point that arises in the case is whether there has been sufficient compliance with the requirements of Section 4 of the Act. Section 4 provides for publication of preliminary notification and powers of officers. The first part of Sub-section (1) relates to the notification which must be published in the Official Gazette with regard to the likely need and the later part of sub-section (1) states that the Collector must cause public notice of the substance of such notification to be given at convenient places in the said locality.

The submission made by the learned Counsel for the Petitioners is that there is no compliance with the requirement of the second portion of Sub-section (1) of Section 4 of the Act, in as much as no notice was served on the Petitioners nor the substance of the notification was caused to be published in the locality as required under law. It is admitted by the Respondents that no individual notice was given. Since the address of the Petitioners was not known, therefore, individual notices could not be sent.

The section does not require any individual notice to be issued. What it requires is that public notice is to be given at the convenient places in the locality which is usually done by affixation of a copy at the conspicuous place in the village where the land is situate or by beat of drum in such village or in some other manner. The land in the present case is situate in the Station Ward, Chhota Simla, District Simla. So, under the law the substance of the notification had to be published in the locality in question, i.e. in the Station Ward, Chhota Simla, where the property is situate. From the record it would appear that there was notice of the substance of the notification made as required under the law. The notification including the draft notification u/s 4 are found at pages 14 to 17 of the file No. 17-58/72-SP. It shows that 20 spare copies of the notification were forwarded to the Land Acquisition Collector for necessary action in the matter as required under Standing Order 28. Para 4 of this notification required the interested persons who had any objection to the acquisition of the land in the locality to file their objections within 30 days from the date of the publication of this notification. This notification is dated 28-1-1975. It was published in the Himachal Pradesh Rajpatra on 15-2-1975 and it finds place at page 203 of the Rajpatra. According to this the objections were to be filed by 17-3-1975. But it is an admitted fact that no objections of any kind were filed by any person. According to the Petitioners, they were not served and, therefore, they were deprived of the right to file their objections, as envisaged u/s 5A of the Act. The record, which has been made available to this Court by the learned Advocate-General through Respondent 1, shows that the Land Acquisition Collector, i.e. Respondent 2, had reported that no party had raised any objection to the acquisition of the land under these circumstances declarations under Sections 6 and 7 of the Act were required to be issued. This is apparent from the office note, dated 18-6-1975. From the file of the Respondent, titled-Acquisition of land for the construction of the office of the H.P. Mineral and Industrial Development Corporation, H.P., Simla, it appears that a copy of the notification u/s 4 along with 20 spare copies were forwarded to the Tehsildar by Respondent 2 for wide publicity by pasting a copy on the notice board of the Deputy Commissioner, Simla, S.D.O. (C), Simla and Tehsildar, Simla, and on conspicuous places in the village and also required an early report to be made to him. The date of this endorsement of the notification at the back is 4-2-1975. The record shows that no publication of the substance of the notice was caused to be made. According to the reply filed by the Respondents they had sent a copy of the notice in a registered cover on the Delhi address of Harbans Lal c/o Messrs Sikand and Co. and that there is an endorsement on the back of the same to the effect that there was no Harbans Lal at Sikand and Co., 50 Janpath, New Delhi. This note is dated 2-4-1975, whereas the notification u/s 4 was published in the Rajpatra on 5-2-1975 and objections were to be filed, as envisaged u/s 5A, within 30 days from the date of the publication. Therefore, it would appear that there is no compliance with the requirement of second part of Sub-section (1) of Section 4 of the Act, in as much as no publication of the notice of the substance of the notification u/s 4(1) was made in the locality or was it served on the present Petitioners within the prescribed time. The Respondent however, have pleaded in their return that they had issued a notice u/s 5-A of the Act. Section 5A does not contemplates the issue of any notice. What it contemplates is that a person interested in the land sought to be acquired should be heard of his objections if made in writing to the Collector within 30 days of the notification u/s 4. The Collector shall make an enquiry, if necessary, and then make a reference to the State Government with a report containing his recommendations. The objections by any interested person in the land have got to be filed within 30 days of the publication of the notification u/s 4(1). Therefore, it is wrong to say on the part of the Respondents that they had issued a notice u/s 4(1) of the Act. This notice purports to have been issued on 5th April, 1975. From the record it appears that this notice was ordered to be served by pasting at the site in the presence of two witnesses and a report was called for. The report dated 6-5-1975 shows that a copy of the notice purporting to be one u/s 5 was pasted at the site in the presence of two witnesses but there is no copy of the notice as to what were the contents thereof. The notice issued to Harbans Lal under a registered cover shows that it was a notice purported to have been issued u/s 4 and the objections were invited within one month from the date of the issue of the notice which is 22-3-1975. This has admittedly not been served and no publication of the substance of the notice has been caused to be published in the locality. Even if this notice u/s 5A may be deemed to be the substance of the notification u/s 4 caused to be published even then there is nothing on the record to suggest what were the contents of the same.

After having examined the contention of the Petitioner that there was not public notice of the substance of the notification caused to be given at convenient places in the locality and as such the entire proceedings are vitiated, I am of the opinion that there does appear some force in it because there is no material on the record to show if there was any compliance with the requirement of Section 4(1). The Respondents are silent about the public notice of the substance of the notification having been given. They only say that they had issued a notice u/s 5A and which was pasted in the locality in the presence of two witnesses. This does not appear to be a compliance with the requirement of the section. It has been held in Pran Jivan Jaitha v. State of West Bengal and Ors. (AIR 1974 Calcutta 210) that Section 4(1) is a mandatory provision and, unless notice is given in accordance with it the entire acquisition proceedings are vitiated. The purpose behind the notice required by the section is that interested persons should know that the land is being acquired so as to enable them to prefer objections u/s 5A which confers a valuable right. To the similar effect is the principle laid down in Balkrishan Dutta v. State (AIR1975 J & K 27 ). In Khub Chand and Others Vs. State of Rajasthan and Others, their Lordships laid down that the provisions of notice u/s 4(1) are mandatory and non-observance of the same renders the acquisition void. Therefore, it is quite clear that the requirements are mandatory and the non-observance of the same Tenders the acquisition void.

The submission of the Respondents was that a noticeunder Section 5A had been issued and pasted in the locality,but there is no material on the record to substantiate this averment. 20 copies of the notice u/s 4, however,appear to have been issued to the Tehsildar by the Land Acquisition Officer for necessary action. Although there is no material even if that notification was pasted in the locality so as to meet with the requirement of second part of Section 4(1) yet the same also would not validate the proceedings because the requirement of the section is that the Land Acquisition Officer shall give a public notice of the substance of the notification by publishing it at some convenient places in the concerned locality. If that is not done then the mere pasting of the notification will not amount to compliance with the requirement of Section 4(1) of the Act. In this behalf reference may be made to the State of Mysore Vs. Abdul Razak Sahib, in which it has been laid down:

"Unless in addition to the publication of notification in the Official Gazette no publicity of the substance of the notification in concerned locality is given, the section cannot be said to have been complied with and the notification would be invalid. The publication of the notice in the locality is a mandatory requirement. In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided u/s 5A, which is a very valuable right.

Therefore, in the light of the above authoritative pronouncement of their Lordships of the Supreme Court there remains no manner of doubt to hold that in the absence of any material on the record and the evasive reply of the Respondents about the publication of the notice of the substance of the (notification u/s 4(1) there was no compliance with the mandatory provision of Section 4(1) of the Act and as such the acquisition as void. The Petitioners, therefore, have been deprived of their valuable right to file objections against the acquisition as envisaged u/s 5A. Had there been compliance and the Petitioners had not filed their objections then it could be said that they had defaulted to file their objections. But, since there was no compliance with the requirement of section 4(1), therefore, it is to be presumed that the Petitioners had no knowledge and they were deprived of filing objections and having a personal hearing to substantiate their objections which they would have made. Hence the acquisition on that ground cannot be sustained.

It is also an admitted fact that the acquisition has been made for Respondent 1 which is a company registered under the Indian Companies Act. When acquisition is made for the purposes of a company then the provisions of Section 6 - 37 (both inclusive) shall not be put into force in order to acquire land unless with the previous consent of the appropriate Government nor unless the company shall have executed the agreement, as contemplated by Section 41. Therefore, Section 39 bars the application of the provisions of Section 6 - 37 in the case of acquisition for a company unless both these requirements are complied with, i.e. the previous consent of the appropriate Government and an agreement is executed by the company. It is admitted by the Respondents that the provisions are mandatory. But the learned Advocate-General contends that the company is a Government concern and the expenditure is also to be wholly met by Respondent 3 and, therefore, this acquisition cannot be said to be made at the expense of the company rather it is acquired for a public purpose and at public expense. There is no denying the fact that the Respondents have stated in their return that the company is wholly a Government unit. Mere averment without any proof especially when it is denied by the Petitioners in their rejoinder will not be sufficient to establish that it is a Government unit. Under the Act, acquisition for a company may also be made for a public purpose, but what has to be seen is whether the compensation to be awarded for the land is to be paid wholly or partly out of public revenues or entirely by a company. Where the acquisition is made for a company simpliciter there must be fullest compliance with Part VII of the Act, which deals with the acquisition of laud for the companies and lays down the procedure for the same. In the present case it is quite obvious from a perusal of the agreement which is executed in terms of Section 41 of the Act that the compensation is to be paid by the Corporation. The notification, dated 18th October, 1975, which purports to have been issued u/s 6 of the Act, also mentions that the Governor of Himachal Pradesh is satisfied that land is required to be taken for public purpose namely for the construction of the office of the Himachal Pradesh Mineral and Industrial Development Corporation Limited, Simla, and at public expense of the said company. Therefore, in the face of these facts the inescapable result is that the expense is to be wholly met by the company and no part of the compensation is to be met out of the public revenues of the State. Hence the provisions of Sections 6 - 37 as envisaged u/s 39 of the Act will not be enforced unless the two requirements, i.e., the previous consent of the appropriate Government and also an agreement as contemplated u/s 41 is executed by the company.

Section 40 provides that the consent of the local Government is not to be given to the proposed acquisition unless upon due enquiry it is satisfied that the land is required for public purposes mentioned in Clause (a) or Clause (aa) or Clause (b). The enquiry as contemplated within the intendment of Sub-section (1) of Section 40 is to be the one made by the Collector u/s 5A or an enquiry held as mentioned u/s 40. The object of the enquiry is for the purpose of satisfying the local Government with regard to the need for acquisition. The company for whose purpose the acquisition is to be made has to satisfy the local Government as to the bonafides of the purpose of the acquisition. Further that the proposed construction for which purpose the land is sought to be acquired would prove useful to the public and for that purpose the company is to furnish material before the local Government.

The learned Counsel for the Petitioners has vehemently argued that there was no material to satisfy the Governor to give his consent for acquisition of the property for a public purpose i.e. for the construction of the office building which is a public purpose of the company. Any way the Court is not concerned with the sufficiency or otherwise. What the Court has to see is whether there was any material at all. It is admitted by the Respondents that no enquiry as contemplated u/s 5-A was made and the record also supports this fact that there was no enquiry because no objections were filed by the Petitioners in the absence of any service or the publication of notice of the substance of the notification in the locality so as to enable the Petitioners to file their objections within 30 days as required u/s 5A. The Land Acquisition Collector, as is revealed from the record, made a report that there were no objections filed u/s 5A and, therefore, a declaration u/s 6 may be issued. Hence it is evident that there was no enquiry u/s 5-A.

The first part of Section 40 is not satisfied with regard to the enquiry. Now we have to see whether there was any enquiry by any other officer. The record is quite silent to that effect also. Therefore, it is manifest that there was no enquiry at all so as to satisfy the Governor to give his consent. In the absence of any material worth the name the consent accorded is also invalid and illegal. If the consent was tainted then the further proceedings with regard to the execution of the agreement, etc. also cannot be upheld as correct.

Respondent 3 issued a declaration under Sections 6 and 7 on 17th July, 1975 (Annexure E). Later on another notification under Sections 6 and 7 as also u/s 17(1) of the Act was also issued on 15th October, 1975, (Annexure F). There is a note below the notification, which reads as:

"Note.-The Governor has already accorded consent for the acquisition of the above land as required u/s 39 of the Land Acquisition Act and the requisite agreement u/s 41 of the Land Acquisition Act has also been executed between the Governor, Himachal Pradesh and the H.P. Mineral and Industrial Corporation Ltd. Simla,

Although the notification, dated, 17th July, 1975, which purports to have been issued u/s 6 and 7 of the Act could not have been issued unless the requirements of Part VII had been fully complied with yet it appears that this notification was subsequently superseded by notification, Annexure F, dated 15th October, 1975. The learned Counsel for the Petitioners contends that this notification, dated 15th October, 1975 is invalid, in as much as there is nothing if it was superseded or revoked. Unless it is shown that it was superseded or revoked as required u/s 21 of the General Clauses Act, the notification, Annexure E, dated 17th July, would hold good. According to him, this notification had been issued without complying with the requirements of Part VII of the Act and as such the acquisition must fail on that ground. However, the mere fact that it is not stated that it is not superseded will not render the subsequent notification invalid on that account. The record shows that when the case was sent to the Judicial Secretary for his opinion, it was found that the agreement had not been executed in accordance with the requirement of Section 39 of the Act and as such the notification under Sections 6 and 7 issued earlier, i.e. in July, was not valid. It was, therefore, decided to issue a fresh notification under Sections 6, 7 and Section 17 after execution of the agreement on 17th October, 1975. There after the record shows that a fresh notification under Sections 6, 7 and 17 was issued on 18th October, 1975. The agreement was drawn up on 17th which is also clear from the file of the Land Acquisition Collector. Though the notification on the record of the Collector gives the date of its issue as 18th October, 1975, but the Himachal Pradesh Rajpatra (Extraordinary) Volume II of 1975 at page 468 published on 1st November, 1975, bears the date of issue as 15th October, 1975.

The declaration under the law is required to be made only after the agreement is made as also the consent as contemplated within the intendment of Section 40 of the Act has been given. The office note, dated 27th March, 1976, says that declaration u/s 6 which was published in the Rajpatra of 1st November, 1975, at page 1468 bears the date, 15th October, 1975, whereas the correct date of issue of the notification was 18th October 1975 and it was proposed that an errata, correcting the precise date of issue of the notification, was to be got printed. But there is no errata to show if the date 15th October had been corrected so as to appear as 18th October. Any way the notification u/s 6 bears the date 18th October which is apparent from the record of the Collector. Though the errata has not actually been issued but the fact remains that the declaration under Sections 6 and 7 of the Act was issued subsequent to the date of the execution of the agreement. So, on that account it cannot be said that the acquisition is bad for non-compliance, inasmuch as the agreement had to precede the issue of the declaration.

In the instant case the material for the satisfaction of the authority to give its consent does not appear to be there. There can be no denying the fact that the sufficiency or otherwise of the material cannot be gone into by the Court but here there is no material at all which could have satisfied the authorities to give their consent.

The learned Counsel for the Petitioners has cited The State of Gujarat and Another Vs. Patel Chaturbhai Narsibhai and Others, to show that the consent of the appropriate Government and the agreement by the corporation with the Government are conditions precedent to the putting into force of the provisions of Section 6 - 37. In the instant case admittedly no enquiry had been held u/s 5A and there is also no material on the record to substantiate if any enquiry under Sub-section (2) of Section 40 of the Act was also held. This enquiry is a must because the Government is to satisfy itself that the work which is proposed to be constructed is likely to prove useful to the public and for that the existence of material is necessary. As there was no enquiry of any kind, therefore, the consent is no consent in the eye of law. So, in the absence of any valid and legal consent having been given the declaration under Sections 6 and 7 of the Act is illegal.

Shri P.N. Nag, the learned Counsel for the corporation for whose purpose the land is acquired has invited my attention to para 3 of Annexure G in which it has been mentioned as under:

And whereas the State Government of Himachal Pradesh being satisfied on the report of the Collector, Simla, that the proposed acquisition is needed for the aforesaid purpose and that the said work is likely to prove useful ''to the public has consented to acquire on behalf of the corporation a piece of parcel of land hereinafter described." The object in inviting attention to this paragraph is that the Government had satisfied itself on the report of the Collector about the need for the proposed acquisition and it was only thereafter that it had given its consent. But this is totally wrong, because admittedly the Collector did not make any enquiry u/s 5A as there was no objection filed by the Petitioners due to there being no service on them. If it may be assumed that there was a proper service on the Petitioner, in as much as the notice u/s 5A had been published in the locality even then the Government had to get an enquiry made as contemplated u/s 40(2). In the case in hand, as would be evident from page 18 of the file of Industries Department H.P. Government, Simla-2. File No. 17-58/72-SP, the Collector made the following report:

No 1901 /DRA Office of the Land Acquisition Officer, (SDO) Simla, Himachal Pradesh Simla, Dated the 10th June, 1975

To,

The Secretary (Industries) to the Government of Himachal Pradesh, Simla.

Sub.:- Acquisition of land for the Himachal Pradesh Mineral and Industrial Development Corporation.

Sir,

Kindly refer to Himachal Pradesh Government Industries Department notification No. 17-58/72-51, dated the 28th June, 1975.

The Copy of Jamabandi issued by the Tehsildar, Municipal Corporation, Simla shows that Shri Harbans Lal is the owner of the land. The notice u/s 5A of the Land Acquisition Act, 1894 was issued to him at his Delhi address. This notice was received back unserved. A copy of the notice u/s 5A was therefore pasted on the land on 1st May, 1975. In pursuance of this notice no objection has been received from any person.

In view of these circumstances it is clear that there is no objection from any person. It is therefore, recommended that declaration under Sections 6 and 7 of the Act may be issued.

Yours faithfully,

Sd/- Land Acquisition Officer S.D.O.-C, Simla.

Therefore, from the above report it would appear that he simply contented himself by issuing a notice u/s 5A of the Act at the Delhi address of Shri Harbans Lal who was said to be the owner of the land and the notice was received back unserved. A notice u/s 5A was pasted on the land on 1st May 1975, and in pursuance of that notice no objections had been received from any person and he, therefore, reported that in those circumstances it was clear that there were no objections from any person. He, therefore, recommended for the issuance of declaration under Sections 6 and 7 of the Act. But this is no enquiry and, therefore, the other enquiry in order to satisfy the Government before it could accord consent was necessary u/s 40(2) of the Act. Therefore, consent, if any, accorded is without any material and is no consent in the eye of law.

Under Rule 4 of the Land Acquisition (Companies) Rules, 1963, whenever a company makes an application to the appropriate Government for acquisition of land that Government shall ask the Collector to submit a report to it on following matters:

(i) that the Company has made its best endeavour to find out lands in the locality suitable for the purpose of the acquisition;

(H) that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed;

(Hi) that the land proposed to be acquired is suitable for the purpose;

(iv) that the area of land proposed to be acquired is not excessive;

(v) that the Company is in a position to utilise the land expeditiously; and

(vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land.

(2) The Collector shall, after giving the Company reasonable opportunity to make any representation in this behalf, hold an enquiry into the matters referred to in Sub-rule (1) and while holding such enquiry he shall-

(i) in any case where the land proposed to be acquir-ed is agricultural land, consult the senior Agricultural Officer of the district whether or not such land is good agricultural land;

(ii) determine, having regard to the provisions of Sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land which, in the opinion of the Collector, should be acquired for the Company; and

(iii) ascertain whether the Company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the land to be acquired.

Explanation.-

XXX (3) As soon, as may be after holding the enquiry under Sub-rule (2), the Collector shall submit a report to the appropriate Government and a copy of the same shall be forwarded by that Government to the Committee.

(4) No declaration shall be made by the appropriate Government u/s 6 of the Act unless-

(i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any, submitted u/s 5A of the Act; and

(ii) the agreement u/s 41 of the Act has been executed by the Company.

So, it is the enquiry into these matters to be made by the Collector u/s 5A or by any other officer u/s 40 of the Act in order to satisfy the Government before giving its consent to the acquisition. It is, therefore, evident that the requirements of Part VII, read with Rule 4 of the aforesaid Rules of 1963 are not complied with.

Since there is no compliance with the requirements of Part VII of the Act, therefore, the petition succeeds on this ground alone and there is no need to go into the other points.

The result, therefore, is that the petition succeeds and the annexures D.E.F.G. and H. are hereby quashed and the parties shall be deemed to have been restorted to their status quo ante i.e. before taking over possession by the Respondents. However, the parties are left to bear their own costs.