Satish Kumar And Others vs State Of Madhya Pradesh And Others

01- The appellants before this Court have filed present writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by order dated 09/09/2009 passed by learned Single Judge in Writ Petition No.2624/2008 (Satish Kumar Batra and Others Vs. The State of Madhya Pradesh and Others).

02- The appellants before this Court are the land owners in respect of land situated in Village Nimanvasa, Tehsil and District Ujjain. The details of the land owned by the appellants are as under:-

No.

Name

Survey No.

Area

1.(i)

(ii)

Satish Kumar Batra Rajesh Kumar Khatri

43/1/ख़

0.234 hectares

2.(i)

(ii)

Kishor Batra

Raju Saluja

43/1/ख़

0.234 hectares

The land in question was purchased by the appellants admeasuring 0.234 hectares each, aggregating to 0.468 hectares through a registered sale deed dated 10/03/1989 from one Nandkishore S/o Ganpat Mali, Ujjain.

03- The appellants got the land in question mutated in their names in the revenue records on 26/08/1989. The appellants have filed Khasra Panchsala on P-2 Form in support of the aforesaid averments and the sale deed is also on record. It has been further stated by the appellants that the land bought by them was not covered within the expression and meaning of "vacant / surplus" under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "Act of 1976") and the appellants did file a statement declaring that they have purchased the land which was duly declared as "exempt land" from the provisions of Act of 1976.

04- The appellants have further contended that the State of Madhya Pradesh enacted the Madhya Pradesh Griha Nirman Evam Adhosanrachana Vikas Mandal Adhiniyam, 1972 (Hereinafter referred to as "Act of 1972") to provide for the incorporation and regulation of housing problem in the State for the purpose of taking measures to deal with and satisfying the need of housing accommodation and for the matters connected therewith.

05- The appellants have further stated that as per the statutory provisions as contained under the Act of 1972, the Housing Commissioner appointed by State shall be the Principal Officer of the Board and it is the Housing Board only, which is empowered to undertake housing scheme and other officers of the Board are not competent to frame any scheme or to make a request for acquisition of land for any scheme.

06- The appellants have further stated that the Act of 1972 provides for a procedure for framing a housing scheme and complete procedure has been laid down under Section 25, 26, 33 and 34 of the Act of 1972. The appellants have further stated that the Executive Engineer, Madhya Pradesh Housing and Infrastructure Development Board unauthorizedly wrote a letter to the Land Acquisition Officer, Ujjain on 11/12/1991 for acquisition of 10.156 hectares of land situated at Village Nimanvasa for a housing scheme. The Executive Engineer repeatedly has again requested for acquisition of land vide letter dated 09/07/1993 and the Land Acquisition Officer, thereafter, issued a notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "Act of 1894") on 12/07/1994. The Land Acquisition Officer thereafter, issued a notification under Section 6 of the Act of 1894 and the same was published in Madhya Pradesh Rajpatra on 26/05/1995.

07- The facts further reveal that one Gajanand Mali being aggrieved by notification dated 12/07/1994 issued under Section 4(1) of the Act of 1894 preferred an objection under Section 5-A of the Act of 1894 along with other land owners (excluding the present appellants as they were not aware of the proceedings under the Land Acquisition Act, 1894) before the Land Acquisition Officer within a period of 30 days and the Land Acquisition Officer rejected the objections and directed for publication of a notification under Section 6 of the Act. The notification under Section 6 was published and after disposal of the objection under Section 5-A of the Act of 1894, the Land Acquisition Officer issued a notification under Section 6 of the Act of 1894, which was published in official Gazette on 25/05/1995.

08- One of the land owner Gajanand S/o Bhagirath Mali being aggrieved by the order passed by the Land Acquisition Officer rejecting his objection preferred a writ petition i.e. Writ Petition No.651/1995 and the same was dismissed by the learned Single Judge by an order dated 16/04/2001.

09- The petitioner therein Gajanand Mali, thereafter, preferred an appeal i.e. Letters Patent Appeal No.228/2001 and the Division Bench of this Court has set aside the order passed by the learned Single Judge as well as the order dated 18/04/1995, which was passed by the Land Acquisition Officer rejecting the objection of Gajanand Mali. The matter was remanded back to the Land Acquisition Officer for deciding the objections afresh.

10- The Land Acquisition Officer pursuant to the judgment delivered in LPA has heard Gajanand Mali the petitioner therein. The following submissions  were  made  by  Gajanand  Mali  in  respect  of  Land Acquisition:-

(a) No housing scheme was was prepared;

(b) No approval from Board was obtained;

(c) Only Executive Engineer of the Board requested for compulsorily acquiring land;

(d) No approval from State Government was obtained;

(e) NOC from Town and Country Planning Department was not obtained;

(f) No budgetary provision was made for any scheme;

(g) Details of land to be acquired and the locality not mentioned in Section 4 notification.

(h) Two fully developed residential colonies were considered as open land.

The Land Acquisition Officer, in spite of great protest by the Housing Board, has allowed the objections preferred by Gajanand Mali and other identically placed persons by an order dated 11/08/2003.

11- The Madhya Pradesh Housing Board, thereafter, has preferred an appeal against the order of Collector by which the objections of the land owners were accepted before the Commissioner, Ujjain Division, Ujjain and the Commissioner, Ujjain Division Ujjain has upheld the order passed by the Collector by an passing an order dated 03/11/2003.

12- The appellants have further stated that while all these proceedings were going on, an award was passed on 24/05/1997 and at no point of time the petitioner was served with any notice of any kind either by the Land Acquisition Officer or by the Housing Board and the appellants, at the moment they came to know that the Collector and Commissioner have accepted the objection raised by Gajanand Mali one of the land owner under an erroneous advice, preferred a civil suit i.e. Civil Suit No.85-A/2006 on 21/12/2004 challenging the acquisition proceedings.

13- An application was preferred by the Madhya Pradesh Housing Board that civil suit is not maintainable. The application was preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908 and the learned Civil Judge, Class-I, Ujjain by an order dated 19/05/2007 passed in Civil Suit No.85-A/2006 has held that the civil suit is not maintainable and in those circumstances immediately a writ petition was preferred before this Court i.e. Writ Petition No.2624/2008. The appellants have further contended that the learned Single Judge has dismissed the writ petition on the ground of delay and laches.

14- The appellants have further stated that the issue of delay and laches does not arise in the peculiar facts and circumstances of the case. The appellants have purchased the land in the year 1989. No notice of any kind was received by the appellants or issued to the appellants by the Land Acquisition Officer. In the award they were not named at all and the cause of action arose only when the appellants came to know about the order of the Collector and the order of the Commissioner who recommended de-notification of acquisition of land under Section 48 of the Act of 1894.

15- The appellants have categorically stated before this Court that as on date not a single rupee has been paid to the appellants. The appellants are in actual physical possession of the land in question and no notice of any kind has been issued by the Land Acquisition Officer to the appellants to collect the compensation in terms of the award dated 24/05/1997 or to deliver possession.

16- It has also been argued by learned Senior Counsel that based upon the findings recorded by the Commissioner, who has acted as an appropriate Government for deciding the inquiry report dated 03/11/2003 submitted by the Collector under Section 5-A of the Act, the acquisition proceedings have become a nullity and the entire land deserves to be de-notified under Section 48 of the Act of 1894 and it cannot be done only in respect of the part of land admeasuring 1.192 and 0.220 hectares as the other land owners like the appellants stand on similar footings.

17- Learned Senior Counsel has also argued that no notice under Section 12(2) for make an award has been served upon the appellants nor any notice under Section 9-A of the Act of 1894 was served to the appellants nor the appellants were directed to make any statement or their names and interest in terms of Section 10 nor any inquiry was conducted by the Collector as to the interest of the appellants in terms of Section 11 and therefore, a fraud has been committed upon the appellants under oblique design to rob them of their property without complying with the proceedings prescribed under the law and the award is void ab initio.

18- Shri Manoj Munshi, learned counsel appearing on behalf of the Housing Board has argued before this Court that a notification was issued under Section 4 on 12/07/1994, declaration under Section 6 was issued on 26/05/1995 and the award was passed on 24/05/1997 under the provisions of Act of 1894 and therefore, as after a lapse of considerable time the petition was filed, it has rightly been dismissed on the ground of delay and laches.

19- He has also stated before this Court that against the order rejecting the objections raised by the land owners, petitions were preferred i.e. Writ Petitions No.651/1995, 718/1995 and 1090/1995 and they were dismissed by this Court. He has admitted that in appeal (Letters Patent Appeal) the matter was remanded back to the Land Acquisition Officer for deciding the matter after hearing the land owners. He has also argued that one more petition i.e. Writ petition No.830/1997 was preferred and the same was dismissed by an order dated 19/07/2004 against which an LPA was preferred and the same was also dismissed and now a civil appeal i.e. Civil Appeal No.923-924/2008 is pending before the Hon'ble Supreme Court.

20- Shri Munshi has argued before this Court that predecessor-in-title of the appellants Mr. Nandkishore participated in the acquisition proceedings and filed his objection in respect of entire land of survey No.43/1/Kha and the same was adjudicated by the Land Acquisition Officer. It has been argued that once the predecessor-in-title has participated in the acquisition proceedings and has filed objections, the appellants cannot raise a ground that they were not heard at any point of time nor noticed at any point of time in the matter.

21- He has vehemently argued that the appellants cannot raise objections in respect of the scheme at this stage. It has also been stated by the respondents that in respect of service of notice under Section 9 and 12(2) of the Act of 1894 that the appellants were having knowledge about the acquisition proceedings did not participate for the reasons best known to them and because the predecessor of the appellants did participated in the proceedings and has also filed objection in respect of entire land of survey No.43/1/Kha, the question of granting an opportunity to the petitioner does not arise.

22- Shri Munshi has repeatedly argued before this Court the appellants were responsible in not participating in the acquisition proceedings. They have done so deliberately, however, they can approach the Collector for deciding their part of the compensation under Section 30 of the Act of 1894.

23- Heard learned counsel for the parties at length and perused the record.

24- The undisputed facts reveal that the appellants have purchased the land admeasuring 0.234 hectares each, aggregating to 0.468 hectares through a registered sale deed dated 10/03/1989 from one Nandkishore S/o Ganpat Mali, Ujjain. The appellants got their names mutated in the revenue record on 26/08/1989. Khasra Panchsala on P-2 Form is on record and the sale deed is also on record.

25- The land in question was not covered within the expression and meaning of "vacant / surplus land" under the provisions of Act of 1976 and the appellants did file a statement declaring that they have purchased the land which was duly declared as "exempt land" from the provisions of Act of 1976.

26- The Madhya Pradesh Griha Nirman Mandal Adhiniyam, 1972 has been incorporated for regulating the housing problems in the State of Madhya Pradesh and for taking the measures to deal with and satisfying the need of housing accommodation and for the matters connected therewith. The Housing Commissioner appointed by the State is a Principal Officer of the Board and it is the Housing Board only which is empowered to undertake the housing scheme and other officers of the Board are not competent to frame any scheme or to make any request for acquisition of land for any scheme.

27- Relevant statutory provisions governing the field under the Act of 1972 as under contained under Sections 25, 26, 33 and 34 are reproduced as under:-

"25. Powers of Board, Chairman and Housing Commissioner to approve estimates - The Board, the Chairman or the Housing Commissioner, as the case may be, may accord approval to estimates for incurring expenditure on any work doing of any act for carrying out any of the purposes of this Act subject to like restrictions and conditions imposed on the Board, the Chairman or the Housing Commissioner, as the case may be, under section 24.

Emergency Powers of Board -(1) Where in the opinion of the Board circumstances have arisen which require immediate action, it shall be lawful for the Board to incur in any year recurring or non- recurring expenditure, not withstanding the fact that such expenditure has not been included in its annual programme or supplementary programme sanctioned by the State Government or the variation of the programme made under section 37.

(2) The expenditure under sub-section (1) shall be made from out of the Contingency Fund established under section 73.

Matters to be provided for by Housing Schemes-Not withstanding anything contained in any other law for the time being in force, a housing scheme may provide for all or any of the following matters, namely-

(a) the acquisition by purchase, exchange or otherwise of any property necessary for an affected by, the execution of the scheme;

(b) the laying or relaying out of any land comprised in the scheme;

(c) the distribution or redistribution of sites belonging to owners of property comprised in the scheme;

(d) the closure or demolition of dwellings or portion of dwellings unfit for human habitation;

(e) the demolition of obstructive buildings or portions of buildings;

(f) the construction and reconstruction of buildings;

(g) the sale, letting or exchange of any property comprised in the scheme;

(h) the construction and alteration of sheets and back lines;

(i) the provision of the draining, water supply and lighting of the area included in the scheme;

(j) The provision of parks, playing fields, open spaces for benefit of any area comprised in the scheme or any adjoining area and the enlargement of existing parks playing fields open space and approaches;

(k) the provision of sanitary arrangements required for the area comprised in the scheme, including the conservation and prevention of any injury or contamination to rivers or other sources and means of water supply;

(l) the provision of accommodation for any class of inhabitants:

(m) the advance of money for the purposes of the scheme;

(n) the provision of facilities for communication and transport;

(o) the collection of such information and statistic as may be necessary for the purposes of this Act;

(p) any other matter for which, in the opinion of the State Government, it is expedient to make provision with a view to provide any housing accommodation and to the making of improvement or development of any area comprised in the scheme or any adjoining area or the general efficiency of the scheme.

Explanation- For the purposes of this section, the State Government may on the recommendation of the Board by notification specify such area surrounding or adjoining the area included in a housing scheme to be the adjoining area.

Land Development Scheme- (I) Whenever the Board is of opinion that it is expedient to provide building sites in any area, the Board may frame a land development scheme. (2) Such scheme shall specify the proposed layout of the area to be developed and the purposes for which particular portions thereof are to be utilized. (3) The Board may provide for roads, streets open spaces, drainage water supply and street lighting and other amenities for the scheme area. (4) The Board may lease out or sell, by out-right sale or on hire purchase basis, the building sites in the scheme area."

28- The undisputed facts also reveal that the Executive Engineer, Madhya Pradesh Housing Board wrote a letter to the Land Acquisition Officer on 11/12/1991 for acquisition of 10.156 hectares of land situated at Village Nimanvasa for a housing scheme and again made a request vide letter dated 09/07/1993 to the Land Acquisition Officer for acquisition of land. The Land Acquisition Officer as requested by the Executive Engineer issued a notification dated 12/07/1994 under Section 4(1) of the Act of 1894 and the notification dated 12/07/1994 reads as under:-

"दैनिक  मध्यांचल शनिवार 6 अगस्त, 1994  15582/24

जिला उज्जैन मध्यप्रदेश एवं पदेन उप सचिव

मध्यप्रदेश शासन राजस्व विभाग

क्रमांक-क्यु/भूमि-सम्पादन 94 उज्जैन,                                                                                                                                                                                                                      दिनांक 12 जुलाई 1994

चूंकि राज्य शासन को यह प्रतीत होता है कि इससे संलग्न सूची के खाने (1) से (4) में वर्णित भूमि को अनुसूची के खाने (6) में उसके सामने दिये गये सार्वजनिक प्रयोजन के लिये आवश्यकता है। अथवा आवश्यकता पड़ने की संभावना है अतः भूअर्जन अधिनियम 1994 क्रमांक (क्रमांक एक सन् 1894) की धारा 4 की उपधारा (1) के उपबंधों के अनुसार इसके द्वारा सभी संबंधित व्यक्तियों को इस आशय की सूचना दी जाती है राज्य शासन इसके द्वारा अनुसूची के खाने (5) में उल्लेखित अधिकारी को उक्त भूमि के संबंध में उक्त धारा 4 की उपधारा (2) दी गयी शक्तियों का प्रयोग करने के लिये प्राधिकृत करता है।

अनुसूची

जिला

भूमि का वर्णन तहसील

नगर/ ग्राम

लगभग क्षेत्रफल (हे.)

धारा 4 की उपधारा 2 द्वारा अधिकृत अधिकारी

सर्वजनिक

प्रयोजन का वर्णन

1

2

3

4

5

6

उज्जैन

उज्जैन

नीमनवास

10.1583 हे.   खुली भूमि

भूअर्जन अधिकारी उज्जैन

आवासीय योजना हेतु

भूमि का नक्शा (प्लान) कलेक्टर कार्यालय में देखा जा सकता है।

मध्यप्रदेश के राज्यपाल के नाम से तथा आदेशानुसार

कलेक्टर एवं पदेन उपसचिव

म.प्र.शासन, राजस्व विभाग

G- 15567 / 94"

29- The facts further reveal that one Gajanand Mali being aggrieved by notification dated 12/07/1994 issued under Section 4(1) of the Act of 1894 preferred an objection under Section 5-A of the Act of 1894 along with other land owners and the present appellants, as they were not aware of the proceedings under the Land Acquisition Act, 1894, did not prefer any objection in the matter. 30- The Land Acquisition Officer rejected the objections raised by Gajanand Mali and thereafter, issued another notification under Section 6 of the Act of 1894 dated 25/04/1995 and the same reads as under:-

"मध्यप्रदेश राजपत्र, दिनांक 26 मई 1995 भाग-1

....................................................................................................................

कार्यालय, कलेक्टर, जिला, उज्जैन मध्यप्रदेश एवं

पदेन उपसचिव, मध्यप्रदेश शासन, राजस्व विभाग

उज्जैन, दिनांक 25 अप्रैल 1995

क्र. क्यू-भूमिसंपादन - 95 - प्र. क्र. 1 - ए - 92-93-94.--चूंकि राज्य शासन को इस बात का समाधान हो गया है कि नीचे दी गई अनुसूची (1) में वर्णित भूमि की अनुसूची के बाद (2) में उल्लेखित, प्रयोजन के लिये आवश्यकता है. अतः भू - अर्जन अधिनियम, 1894 ( क्रमांक एक, सन् 1894) की धारा 6 के अंतर्गत इसके द्वारा यह घोषित किया जाता है कि उक्त भूमि की उक्त प्रयोजन के लिये आवश्यकता है :-

अनुसूची

(1) भूमि का वर्णन :--

(क) जिला -        उज्जैन

(ब) तहसील -      उज्जैन

(ग) नगर/ग्राम -   निमनवासा की खुली भूमि

(घ) लगभग क्षेत्रफल - 10.158 हेक्टर

खसरा नंबर        रकबा (हेक्टर में)

(1)                    (2)

43.1                  1.045

44/1/1              3.375

44/2                  0.679

44/4                  0.074

85                    0.053

87/3                  0.920

खसरा नंबर                    रकबा (हेक्टर में)

98                    0.167

89                    1.672

90                    0.261

91                    0.209

92                    0.627

93                    0.251

94                    0.773

95                    0.052

योग                   10.158

(2) सार्वजनिक प्रयोजन जिसके लिये भूमि को आवश्यकता है -- ग्राम नीमनवासा उज्जैन में आवासीय योजना हेतु भूमि अधिग्रहण बाबत.

(3) भूमि का नक्शा ( प्लान ) का निरीक्षण जिलाध्यक्ष के कार्यालय में किया जा सकता है.

मध्यप्रदेश के राज्यपाल के नाम से तथा आदेशानुसार

आर. सी. सिन्हा, कलेक्टर एवं पदेन उपसचिव"

Gajanand S/o Bhagirath Mali being aggrieved by rejection of his objection preferred a writ petition i.e. Writ Petition No.651/1995 before this Court and the learned Single Judge by an order dated 16/04/2001 has dismissed the writ petition. The petitioner therein Gajanand Mali thereafter, preferred an appeal i.e. Letters Patent Appeal No.228/2001 and the Division Bench of this Court has set aside the order passed by the learned Single Judge as well as order dated 18/04/1995 by which the objections of Gajanand Mali were rejected by the Land Acquisition Officer. The Division Bench of this Court has remanded back the matter to the Land Acquisition Officer to pass appropriate order in accordance with law in respect of the objections made by Gajanand Mali.

31- Gajanand Mali in his objection in respect of the land under the notification issued under Section 4(1) dated 12/07/1994 has raised following objections:-

(a) No housing scheme was was prepared;

(b) No approval from Board was obtained;

(c) Only Executive Engineer of the Board requested for compulsorily acquiring land;

(d) No approval from State Government was obtained;

(e) NOC from Town and Country Planning Department was not obtained;

(f) No budgetary provision was made for any scheme;

(g) Details of land to be acquired and the locality not mentioned in Section 4 notification.

(h) Two fully developed residential colonies were considered as open land.

The Land Acquisition Officer after taking into account the objections raised by Gajanand Mali and other identically placed persons has passed an order on 11/08/2003 and the relevant extracts of the order passed by the Collector (Land Acquisition Officer) reads as under:-

"मैंने म.प्र.गृ.नि.म. अधिनियम 1972 के प्रावधानों का अवलोकन किया है। इस अधिनियम के अध्याय 6 में आवासीय योजना के प्रावधान समावेशित है। इस अध्याय के अंतर्गत धारा 31 से 34 का अध्ययन करने पर विदित होता है कि राज्य शासन के नियंत्रण के अधीन रहते हुए आवासीय योजनाओं के लिये व्यय करने तथा कार्य किसी क्षेत्र के हाथ में लेने के लिये बोर्ड कार्यवाही कर सकता है। म.प्र.गृ.नि.म. अधिनियम 1972 की धारा 2 की उपधारा 3 में बोर्ड को परिभाषित किया गया है।''

"इन प्रावधानों का अध्ययन करने पर स्पष्ट होता है कि आवासीय योजना के लिये बोर्ड द्वारा पारित औपचारिक प्रस्ताव किसी आवासीय योजना के लिये आधारभूत आवश्यकता है। प्रस्तुत प्रकरण के अभिलेख में अथवा कार्यपालन यंत्री, उज्जैन द्वारा प्रस्तुत किये गये अभिलेखों में ऐसा कोई अभिलेख नहीं है जिससे यह विदित होता है कि प्रस्तावित भूमि अर्जन के लिये उनका अनुरोध म.प्र.गृ.नि.म. के विधान अनुसार निर्णय एवं स्वीकृति उपरांत प्रस्तुत किया गया हो।''

"मैंने 1979 जेएलजे पृ.क्रं. 505 में उल्लैखित मा. उच्च न्यायालय मध्यप्रदेश के संबंधित न्यायिक दृष्टान्त का भी अध्ययन किया है। इस न्यायिक दृष्टांत में मा. उच्च न्यायालय ने मान्य किया है कि बोर्ड का अध्यक्ष बोर्ड नही होता है। बोर्ड मध्यप्रदेश गृह निर्माण इकाई जिसमें राज्य शासन द्वारा नियुक्त अध्यक्ष के साथ उक्त प्रावधान में उल्लेखित अन्य सदस्य भी होते है।"

''इस दष्टांत में कहा गया है कि बोर्ड द्वारा पारित किये गये प्रस्ताव में भूमि अर्जन का आधार होना चाहिये । अध्यक्ष के निर्देशानुसार किसी कार्यपालन यंत्री द्वारा भूअर्जन अधिकारी को भेजा गया पत्र इस अधिनियम की धारा 49 के अंतर्गत भूअर्जन के लिये पर्याप्त नही है।''

"उपरोक्त विशलेषण से आपत्तिकर्ता का यह कथन सही जान पड़ता है कि धारा 4 की अधिसूचना अवैध, अपूर्ण एवं अव्यवहारिक है। मात्र कार्यपालन यंत्री के प्रस्ताव पर भूअर्जन अधिनियम की धारा 4 की अधिसूचना का प्रसार विधि-शून्य है।''

"सामान्यतः गृह निर्माण मण्डल द्वारा हाथ में ली जाने वाली योजनाओं के लिये बोर्ड के अनुमोदन के साथ साथ राज्य शासन के औपचारिक अनुमोदन की भी आवश्यकता होती है। आपत्तिकर्ताओं ने मध्यप्रदेश शासन, आवास एवं पर्यावरण विभाग के पत्र क्रमांक/एफ/3239/ 85/32/30.03.92 का उल्लेख इस सन्दर्भ में किया है। इस प्रकार में ऐसा कोई अनुमोदन अभिलेखों में उपलब्ध होना नहीं पाया जाता है।''

"एक विषय यह है कि क्या अर्जित की जा रही भूमि भर्जन के प्रस्ताव प्रस्तुत करते समय पूर्णतः कृषि भूमि थी। आपत्तिकर्ता का कथन यह है कि प्रसतावित भूमि में से 1.192 तथा 0.220 हेक्टर भूमि अर्जुननगर तथा अलकापुरी कालोनी के रूप में धारा 4 की अधिसूचना के प्रकाशन के पूर्व विकसित थी। इस संबंध में आपत्तिकर्ताओं ने जिला कलेक्ट्रेट में अवैधानिक कालोनी अनुमोदन से संबंधित प्रकरण का पूर्ण विवरण प्रस्तुत किया है। इस विवरण के आधार पर स्पष्ट होता है कि उपरोक्त उल्लेखित कालोनी आवासी योजना के रूप में विधिवत रूप से स्वीकृति एवं अनुमोदन प्राप्त कर विकसित की गई थी और अर्जानाधीन भूमि का 1.192 तथा 0.220 हैक्टर हिस्सा कृषि भूमि नहीं था। इस बारे में उन्होंने संगत दस्तावेजों की प्रतिलिपियां प्रस्तुत की है। अभिलेखों के अवलोकन से जान पडता है कि अर्जन के प्रस्ताव में उक्त जानकारी सही रूप से संस्था द्वारा प्रदर्शित नहीं की गई थी । इस प्रकरण में एक महत्वपूर्ण बिन्दू और है। माननीय उच्च न्यायालय ने आपत्तिकर्ताओं द्वारा आपत्तियां प्रस्तुत किये जाने पर उपरोक्त अर्जुननगर एवं अलकापुरी से भूअर्जन की अग्रिम कार्यवाही के संबंध में अधिसूचना प्रकाशित करने के लिये स्थगन दिया था। शेष 8.746 भूमि इस स्थगनसे प्रभावित थी।''

"मेरे पूर्वाधिकारी ने इस अप्रभावित क्षेत्रफल 8.746 हेक्टर के संबंध में अधिनियम के प्रावधानों के अंतर्गत पूर्ण कार्यवाही के बाद दिनांक 24.05.1997 को एक अवार्ड पारित किया तथा अवार्ड में 32,46,199.00 रूपये का प्रतिकर निश्चित किया गया था। सामान्य तौर पर प्रतिकर राशि अर्जित करने वाली ऐजेंसी को अग्रिम के रूप में जमा कर दी जानीं थी। इस प्रकरण में ऐसा नहीं किया गया। अवार्ड पारित हो जाने के बाद यह राशि तत्काल संबंधित भूमिस्वामियों को प्रतिकर के भुगतान के लिये उपलब्ध करायी जाना थी। इस संबंध में भूअर्जन अधिकारी द्वारा अनेकों बार लिखे जाने के बावजूद न तो उक्त राशि जमा की गई और राशि न जमा किये जाने के संबंध में कोई युक्तियुक्त कारण प्रस्तुत किया गया । इस विषय को, लंबित रखने के लिये यह अपेक्षा की जाती रही कि क्या न्यायालय द्वारा स्थगन प्रभावशील होते हुए भी आधिपत्य सौंपा जायेगा। भूअर्जन अधिकारी ने माननीय उच्च न्यायालय द्वारा आपत्तियों की सुनवाई के निर्देश के साथ प्रकरण प्रत्यावर्तन में वापस प्राप्त करने हेतु एक अवसर दिया था। इसका भी लाभ गृह निर्माण द्वारा नहीं लिया गया। यह उनके प्रकरण का सबसे दुर्बल पक्ष है। बिना मुआवजा की राशि उपलब्ध कराये भूअर्जन की प्रकिया कैसे संभव है़? इससे यह अनुमान किया जा सकता है कि गृह निर्माण मण्डल द्वारा औपचारिक रूप से उक्त भूअर्जन पर अनुमोदन प्राप्त नहीं होने के कारण वित्तीय आवंटन प्राप्त नहीं हो सका। उपरोक्त विश्लेषण के आधार पर निष्कर्ष यह है कि आपत्तिकर्ताओं की आपत्तियां वैधानिक एवं तथ्यात्मक आधार पर विचारणीय है। गृह निर्माण मण्डल द्वारा भूअर्जन के प्रस्ताव की स्वीकृति एक आवश्यक कानूनी औपचारिकता है, यह माननीय उच्च न्यायालय मध्यप्रदेश का न्यायिक दृष्टांत इस प्रकरण के लिये एक प्रासंगिक न्याय सिद्धांत है। मात्र कार्यपालन यंत्री की पहल अधिनियम की धारा 4 की अधिसूचना के लिये पर्याप्त आधार नहीं हो सकती है। इस प्रकरण में धारा 4 की अधिसूचना इसी दुर्बल एवं वैधानिक दृष्टि से असक्षम आधार पर जारी हुई है। फलतः अपास्त किये जाने योग्य है।''

''अन्य आपत्तियां तथ्यात्मक है और अभिलेखों के आधार पर प्रमाणित है। अधिनियम की धारा 5 के अंतर्गत मेरी अनुशंसा यह है कि यह एक ऐसा प्रकरण है जिसमें आपत्ति मान्य की जानी याहिये और चूंकि इस प्रकरण में भूमि का आधिपत्य प्राप्त नही किया गया है इसलिये अधिनियम की धारा 48 के अंतर्गत पूर्व प्रसारित अधिसूचना दिनांक 12.07.1994 के प्रत्याहरण की अनुशंसा शासन को किया जाना नियम संगत और औचित्यपूर्ण होगा। तदनुसार कार्यवाही की जावे। तदनुसार मेरे पूर्वाधिकारी द्वारा अधिनियम की धारा 4 के अंतर्गत दिनांक 12.07.94 जारी अधिसूचना के सन्दर्भ में की गई अनुववर्ति कार्यवाहियां भी वैधानिक दृष्टि से निष्प्रभावी हो जावेगी।''

The order of the Collector reveals that there was no approval by the Madhya Pradesh Housing Board in respect of the acquisition, there was no request made by the Board for acquisition of the land in question, it was only the Executive Engineer who wrote a letter to the Land Acquisition Officer for acquisition of the land. There was no approval of the State Government also and in those circumstances and on other grounds also the learned Collector has arrived at a conclusion that the objection raised by the land owners are valid objections and the notification dated 12/07/1994 issued under Section 4(1) of the Act of 1894 cannot be implemented. It is pertinent to mention that there was one common notification dated 12/07/1994 in respect of the entire piece of land and it is not a case where independent and separate notices were issued in respect of different parcels of lands.

32- The Madhya Pradesh Housing Board preferred an appeal before the Commissioner and the Commissioner by an order dated 03/11/2003 has accepted the recommendations made by the Collector and it has been held by the learned Commissioner that he is in agreement with the findings arrived at by the Collector. Relevant extracts of the order passed by the Commissioner dated 03/11/2003 are reproduced as under:-

"मैंने कलेक्टर उज्जैन के प्रतिवेदन, आपत्तिकर्ताओं की आपत्ति उसका प्रतिवादी एवं दोनों पक्षों के द्वारा दिये गये तर्कों के आधार पर प्रकरण का सूक्ष्म परीक्षण एवं अध्यन किया है। प्रकरण में अर्जुननगर एवं अलकापुरी कॉलोनी की भूमि रकबा 1.192 एवं 0.220 है. भूमि का विवाद है शेष भूमि रकबा 8.746 है. की भू-अर्जन की कार्यवाही पूर्ण हो चुकी है उसमें विवाद केवल प्रतिकर की राशि रू.32,46,199/- म.प्र.गृह निर्माण मंडल संभाग उज्जैन के द्वारा अभी तक नहीं जमा कराने का ही शेष है इसलिए इस भूमि के संबंध में धारा 5ए की आपत्तियों पर विचार नहीं किया जाएगा । धारा 5ए की आपत्तियों पर विचार केवल प्रश्नाधीन भूमि रकबा 1.192 एवं 0.220 है.के संबंध में ही किया जाएगा।''

''प्रकरण, में उक्त प्रश्नाधीन भूमि के संबंध में कलेक्टर उज्जैन ने जो प्रतिवेदन दिया है उसमें आपत्ति कर्ताओं की आपत्तियों की उनके तर्को के प्रकाश में विस्तृत विवेचना की गई है मैं उनकी विवचेना एवं उनके निष्कर्ष से सहकत हॅूं।''

"म.प्र. गृह निर्माण मंडल के विधान के अनुसार मंडल की स्वीकृति के उपरान्त ही कार्यापालन यंत्री को भू-अर्जन के प्रस्ताव देना थे जो नहीं दिये गये है इसलिए धारा 4 की अधिसूचना विधिवत नहीं मानी जा सकती है। क्योंकि प्रावधानुसार वादग्रस्त भूमि का विवरण एवं स्थान का स्पष्ट उल्लेख नही किया गया है।''

"प्रश्नाधीन भूमि का डायवर्शन दिनांक 30.1.93 को हो चुका था और उस पर अर्जुन नगर एवं अलकापुरी कालोनी का विकास धारा 4 की अधिसूचना जारी होने के पूर्व ही हो चुका था। उक्त आवासीय कॉंलोनीयॉं विधिवत रूप से आवश्यक स्वीकृति एवं अनुमोदन प्राप्त करने के पश्चात विकसित हो चुकी थी ऐसी स्थिति में यह भूमि कृषि भूमि नही थी।''

"ऐसी स्थिति में आपत्तिकर्ताओं की आपत्ति कलेक्टर उज्जैन के प्रतिवेदन अनुसार मान्य की जाकर प्रश्नाधीन भूमि रकबा 1.192 एवं 0.220 है. को धारा 4 की पूर्व प्रसारित अधिसूचना दिनांक 12.07.1994 से कम करके प्रत्याहरण की अनुशंसा धारा 48 के अंतर्गतन राजस्व विभाग को की जाती है।''

"इस भूमि का अभी कब्जा नहीं लिया गया है।''

"शेष भूमि रकबा 8.776 है. जिसका अधिनिर्णय दिनांक 24.5.97 को अधिनियम के अंतर्गत कार्यवाही पूर्ण करके पारित किया जा चुका है इस की प्रतिकर की राशि रू.32,46,199/- म. प्र. गृह निर्माण मंडल उज्जैन को अंतिम अवसर देते हुए 45 दिन में जमा करने के आदेश दिये जाते है। यदि 45 दिन में गृह निर्माण मण्डल उक्त प्रतिकर की राशि जमा नही कराता है तो कलेक्टर उज्जैन धारा 48 के अंतर्गत प्रत्याहरण की अनुशंसा के साथ इस कार्यालय को भेंजें।''

The another important aspect of the case is that the Housing Board has not preferred any writ petition challenging the findings arrived at by the Collector or the order passed by the Commissioner dated 03/11/2003 for the reasons best known to them.

33- The another important aspect of the case is that while all these was going on, an award was also passed in the matter on 24/05/1997 and the appellants came to know about the order passed by the Commissioner only in the year 2004. The appellants immediately preferred a civil suit i.e. Civil Suit No.85-A/2006 on 21/12/2004 challenging the acquisition proceedings. The Madhya Pradesh Housing Board has preferred an application under Section VII Rule 11 of the Code of Civil Procedure, 1908 and the learned Civil Judge, Class-I, Ujjain by an order dated 19/05/2007 passed in civil suit has held that the civil suit is not maintainable and therefore, a writ petition was preferred immediately before this Court i.e. Writ Petition No.2624/2008. The learned Single Judge has dismissed the writ petition on the ground of delay and laches.

34- Shri Munshi, learned counsel has admitted before this Court that no notice of any kind was ever issued to the present appellants by any authority at any point of time. He has vehemently argued before this Court that predecessor-in-title one Mr. Nandkishore has participated in the acquisition proceedings and objection filed by him in respect of entire land of survey No.43/1/Kha was rejected by the Land Acquisition Officer. He has also stated that notice after the award was passed under Section 9 and 12(1) of the Act of 1894 was not issued at any point of time to the present appellants. He has vehemently argued that once the predecessor-in-title has been noticed, the question of issuing notice to the present appellants at any stage does not arise.

35- This Court really fails to understand as to how notice upon the predecessor-in-title, after the award has been passed, is a valid notice to the present appellants. The appellants have purchased the land through a registered sale deed on 10/03/1989, their names were mutated in the revenue record on 26/08/1989, they have submitted a statement under the Urban Land (Ceiling and Regulation) Act, 1976 before the Competent Authority and the notification under Section 4(1) was issued later on i.e. on 12/07/1994 and therefore, the predecessor-in-title was certainly not the title holder and therefore, the arguments canvassed by Shri Munshi that predecessor-in-title were heard is repealed.

36- Shri Munshi has drawn the attention of this Court towards Annexure-R/2/2 at page number 298-299 of the Paper Book and his contention is that the original land owner Nandkishore, whose name appear in column 3 of form P-2 was certainly noticed under the Act. This itself makes it very clear that no notice of any kind was issued or served to the present appellants.

37- Shri Munshi has placed reliance upon a judgment delivered by the Hon'ble Supreme Court in the case of Kedar Nath Yadav Vs. State of West Bengal and Others reported in (2017) 11 SCC 601 and his contention is that non-service of notice upon the individual landowner shall not vitiate the land acquisition proceedings if the notices have been published in the news papers and the Gazette as required under the Act.

This Court has carefully gone through the aforesaid judgment. In the aforesaid judgment it has also also been held that in case an award has been passed without issuance of notices to the holders on the pretext that it was not possible to serve them due to prevailing situation, for determination of compensation individual notices are required to be issued. Section 9(1) requires the Collector to publish public notice for taking possession and for claims to compensation to be made. In the present case all such notices have been issued in the name of predecessor-in-title and therefore, the judgment relied upon does not help the respondent Housing Board in any manner.

38- The most important aspect of the case is that the Collector (Land Acquisition Officer) has allowed the objections in respect of notification under Section 4(1) of the Act of 1894 dated 12/07/1994 as no housing scheme was prepared and no approval of the Board was obtained. Only Executive Engineer of Board requested for compulsorily acquiring the land. No approval of the State Government is obtained, no NOC of Town and Country Planning Department is obtained, no budgetary provision were made for any scheme and details of land to be acquired and locality was not mentioned in the notification. The same grounds are in existence in respect of the present appellants.

39- Once the aforesaid grounds have been accepted by the Collector and affirmed by the Commissioner, the Housing Board cannot take a plea that no in respect of the present appellants, the aforesaid grounds were not available. It was a common notification and therefore, if the notification under Section 4(1) has become non est in law on account of aforesaid grounds, the entire notification goes.

40- Shri Munshi has also placed reliance upon a judgment delivered by the apex Court in the case of State of Mysore Vs. Abdul Razak Sahib reported in (1973) 3 SCC 196 and his contention is that once the notice is published under Section 4(1) of the Act of 1894, the question of individual services does not arise in light of the aforesaid judgment and the award cannot be set aside.

This Court has carefully gone through the aforesaid judgment, however, the Housing Board is ignoring the fact that the objections raised by the identically placed persons in respect of notification under Section 4(1) have been accepted by the Collector and the order of the Collector has been up-held by the Commissioner and therefore, once the objections have been accepted in respect of Section 4(1) notification, they are the objections in respect of the entire notification.

41- Shri Munshi has again placed reliance upon a judgment delivered by the apex Court in the case of Collector (District Magistrate) Allahabad and Others Vs. Ram Jaiswal reported in (1985) 3 SCC 1, wherein it has been held that publication of notice in a news paper within the locality and in the Gazette is mandatory and there is no provision under Section 4(1) of the Act of 1894 which requires service of notice upon individual land owners. There is no quarrel in respect of the aforesaid statutory provisions.

The present case is distinguishable on facts. In respect of Section 4(1) of the Act of 1894 the objections have been up-held by the Land Acquisition Officer and the order of the Land Acquisition Officer has been up-held by the Commissioner as there was no housing scheme, no approval of the Board was obtained, no approval of the State Government was obtained, no NOC from Town and Country Planning Department was obtained, etc.

42- Shri Munshi, learned counsel has lastly placed reliance upon a judgment delivered by the Full Bench of this Court in the case of State of Madhya Pradesh Vs. Vishnu Prasad reported in AIR 1966 SC 1593. The aforesaid judgment again deals with the statutory provisions as contained under Section 4(1) of the Act of 1894. It has been held in the aforesaid case that the notification under Section 4(1) informs the public that land is required or would be required in a p[articular locality and thereafter, the members of the public owning land in that locality have to make objections.

This Court has carefully gone through the aforesaid judgment also, however, in the present case, objections preferred by the Gajanand Mali have been allowed by the Land Acquisition Officer and the same objections are in existence in respect of the appellants' land and therefore, once the Collector has passed an order under Section 5-A of the Act of 1894 and the objections have been up-held, the notification under Section 4(1) of the Act of 1894 has got no meaning.

43- In the present case, the learned Single Judge has dismissed the writ petition on the ground of delay and laches without examining the illegalities in respect of the acquisition proceedings. The appellants are still in possession of the land in question. The appellants were not given any notice of notification under Section 4, 6, 9 and 12 of the Act of 1894. The Civil Judge in the Civil Suit preferred by the appellants has passed an order of status-quo on 05/10/2004 and the same was in existence up to 19/05/2007. The Housing Board has not taken any steps towards any housing scheme so far.

44- The Hon'ble Supreme Court in the case of Royal Orchid Hotels Limited and Another Vs. G. Jayarama Reddy and Others reported in (2011) 10 SCC 608 in paragraphs No.18 and 19 has held as under:-

"18. In the second round, the learned Single Judge dismissed the writ petition by observing that even though fraud vitiates all actions, the Court is not bound to give relief to the petitioner ignoring that he had approached the Court after long lapse of time. Writ Appeal No.7772 of 1999 filed by respondent No.1 was allowed by the Division Bench of the High Court. While dealing with the question whether the learned Single Judge was justified in non suiting respondent No.1 on the ground of delay, the Division Bench referred to the explanation given by him, took cognizance of the fact that even after lapse of more than a decade and half land had not been put to any use and observed:

".................It is the definite case of the appellant that he came to know of the fraud committed by the third respondent in diverting the acquired land clandestinely in favour of Respondents 4 and 5 and certain others, that too, for the purpose other than the purpose for which the land was acquired, only in the year 1993. It is his further case that even then, he did not approach this Court for legal remedies immediately after he came to know of the fraud committed by the third respondent and also the judgment of this Court in the case of Behroze Ramyar Batha Vs. Land Acquisition Officer, (1992) 1 Kant LJ 589, because, under a wrong legal advice, he filed IAI in LAC No. 37 of 1988. In other words, even after the appellant came to know of the fraud committed by the 3rd respondent, under a wrong advice, he was prosecuting his case before a wrong forum. The question for consideration is whether that circumstance can be taken into account for condoning the delay. A three Judge Bench of the Supreme Court in the case of Badlu and another. v. Shiv Charan and others., (1980) 4 SCC 401 where a party under a wrong advice given to them by their lawyer was pursuing an appeal bonafide and in good faith in wrong Court, held that the time taken for such prosecution should be condoned and took exception to the order of the High Court in dismissing the second appeal. Further, the Supreme Court in M/s Concord of India Insurance Company Limited v. Smt. Nirmala Devi and Others., [1979] 4 SCC 365 has held that the delay caused on account of the mistake of counsel can be sufficient cause to condone the delay and the relief should not be refused on the ground that the manager of company is not an illiterate or so ignorant person who could not calculate period of limitation.

It is the further case of the appellant that only in the month of September, 1995 he was advised by another counsel that the appellant was wrongly prosecuting his case before the Civil Court by filing IAI in LAC No. 37 of 1988 and that the civil court has no jurisdiction to quash the notification issued under Section 4(1) and declaration under Section 6(1) of the Act and for that relief, he should necessarily file writ petition in this Court. The appellant on receiving such advice from the counsel, without any further loss of time, filed the present Writ Petition No. 34891 of 1995 in this Court on 18-9- 1995. It further needs to be noticed that the pleading of the appellant would clearly demonstrate that but for the fraud committed by the 3rd respondent in diverting the acquired land in favour of respondents 4 and 5 and others clandestinely for the purposes other than the purpose for which it was acquired, perhaps, the appellant would not have challenged the land acquisition proceedings at all. It is his definite case that he was approaching this Court under Article 226 for quashing the impugned notifications only because the acquired land was sought to be diverted by the third respondent-beneficiary in favour of third parties, that too, for the purposes other than the one for which it was acquired and the acquisition of the entire extent of land under the same notification in its entirety is already quashed by this Court as fraud on power and tainted by malafide. Therefore, the Court has necessarily to consider the question of delay and laches in the premise of the specific case of the appellant and it will be totally unfair and unjust to take into account only the dates of Section 4(1) notification and Section 6(1) declaration. It is also necessary to take into account the fact that well before the appellant approached this Court, the Division Bench of this Court in Writ Appeal No. 2605 of 1991 and Writ Petition Nos.19812 to 19816 of 1990 preferred by certain other owners of the acquired land vide its orders dated 18-9-1991 and 3-10- 1991 had already quashed Section 4(1) Notification and Section 6(1) declaration in their entirety and directed the State Government and the LAO to handover the acquired land to the owners concerned on red positing of the compensation money received by the owners with 12% interest p.a. In that view of the matter, it is trite, the acquisition of the schedule land belonging to the appellant also stood quashed by virtue of the above judgments of the Division Bench. Strictly speaking, the State Government and the LAO even in the absence of a separate challenge by the appellant to the land acquisition proceedings, in terms of the orders made in the above writ appeal and writ petitions, ought to have handed over the schedule land to the appellant by collecting the amount of money received by him as compensation with interest at 12% p.a.

Be that as it may, the appellant as an abundant caution separately filed writ petition for quashing of the notifications issued under Sections 4(1) and 6(1) of the Act with regard to the schedule land. The relief cannot be refused to the appellant, because, the appellant herein and the appellants in Writ Appeal Nos. 1094-1097 of 1987 and W.A. No. 2065 of 1991 and the petitioners in Writ petition Nos. 19812 to 19816 of 1990 are all owners of the acquired land under the same notifications and all of them belong to a 'well-defined class' for the purpose of Article 14 of the Constitution. There is absolutely no warrant or justification to extend different treatment to the appellant herein simply, because, he did not join the other owners at an earlier point of time. It is not that all the owners of the acquired land except the appellant instituted the writ petitions jointly and the appellant alone sat on fence awaiting the decision in the writ petitions filed by the other owners. Some writ petitions were filed in the year 1987 and other writ petitions in the year 1990 as noted above. Since the appellant came to know of the fraud committed by the third respondent only in the year 1993 after this Court delivered the judgment in Batha's case (supra) and since he was prosecuting his case before a wrong forum under a wrong legal advice and therefore, the time so consumed has to be condoned in view of the judgment of the Supreme Court already referred to above, we are of the considered opinion that the learned single Judge is not justified in dismissing the writ petition on the ground of delay and laches.

It needs to be noticed further that admittedly, no developments have taken place in the schedule land despite considerable passage of time. Further more, admittedly, no rights of third parties are created in the schedule land. The schedule land being a meagre extent of land compared to the total extent of land acquired for the public purpose, cannot be put to use for which it was originally acquired. Looking from any angle, we do not find any circumstance on the basis of which we would be justified in refusing the relief on the ground of delay and laches even assuming that there was some delay on the part of the appellant before approaching this Court by way of writ petition in the year 1995."

The Division Bench then referred to orders dated 18.9.1991 and 3.10.1991 passed in Writ Petition Nos.19812 to 19816 of 1990 - Annaiah and others v. State of Karnataka and others and Writ Appeal No.2605 of 1991 - Smt. H.N. Lakshmamma and others v. State of Karnataka and others (supra) respectively and held:

".............................Since  the  appellant  herein and the appellants and writ petitioners in W.A.No. 2605 of 1991 and W.P. Nos. 19812 to 19816 of 1990 are the owners of the acquired land under the same notification and similarly circumstanced in every material aspect, they should be regarded as the persons belonging to a 'well- defined class' for the purpose of Article 14 of the Constitution. In other words, the appellant herein is also entitled to the same relief which this Court granted in Writ Appeal No. 2605 of 1991 and W.P. Nos. 19812 to 19816 of 1990 to the owners therein. Apart from that, as already pointed out, the schedule land is a very meagre land compared to the total extent of land acquired and except the schedule land the acquisition of the remaining land has been set at naught and the possession of the land has been handed over to the owners. The schedule land being a meagre in extent, cannot be used for the purpose for which it was acquired. That is precisely the reason why the schedule land is kept in the same position as it was on the date of Section 4(1) notification without any improvement or development."

In the aforesaid case also the petitioner therein has approached the Court after a long time and the issue of non-suiting on the ground of delay and laches was looked into and the Hon'ble Supreme Court has taken note of the fact that even after lapse of more than a decade and half land had not been put to any use.

In the present case also as notification was issued in the year 1994 and till date no steps have been taken by the Housing Board and therefore, the question of delay and laches will not come in way of the appellants. Otherwise also, the appellants on an erroneous advice have filed a civil suit and after dismissal of the civil suit as it was not maintainable have immediately approached this Court.

45- A litigant cannot be made suffer due to wrong advice by an advocate as held in the case of Rafiq and Another Vs. Munshilal and Another reported in (1981) 2 SCC 788. The apex Court in the aforesaid case in paragraph No.3 has held as under:-

"3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs.200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi."

This Court after carefully gone through the aforesaid judgment is of the opinion that the appellants cannot be made suffer due to wrong advice given to them for filing a civil suit. In the case of Royal Orchid Hotel (Supra) again a similar view has been taken by the Hon'ble Supreme Court.

46- In the case of Smt. Lachi Tewari and Others Vs. Director of Land Records and Others reported in 1984 (Supp) SCC 431 in paragraphs No.4 the Hon'ble Supreme Court has held as under:-

"4. The mere narration of facts would suffice to focus attention on what point is involved in this appeal. The petitioner obtained rule nisi in 1976 and waited for 7 years for its being heard. Suddenly one day the High Court consistent with its calendar fixed the matter for hearing on April 21, 1983, The petitioner had taken extra caution to engage three learned counsels. We fail to see what more can be expected of him. Further we fail to understand what more steps should he have taken in the matter to avoid being thrown out unheard. In Rafiq v. Munshilal 1981 2 SCC 788 this Court succinctly brought out this aspect. Says the Court: (SCC p. 789, para 3)

"The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job."

Again in Goswami Krishna Murarilal Sharma v. Dhan Prakash (1981) 4 SCC 574 this Court reiterated this very principle. And that squarely applies to the facts of this case. On this short ground we allow this appeal, set aside the order of the High Court dated April 21, 1983 as also the order refusing to recall the earlier order dated May 2, 1983 and restore the civil rule to the file of the High Court to be disposed of by the High Court on merits consistent with its calendar."

Thus, it can be safely gathered that the litigants cannot be made suffer due to wrong advice given to them by advocate. 47- In the present case, following grounds were raised by submitting an objection before the Land Acquisition Officer by Gajanand Mali:-

(a) No housing scheme was was prepared;

(b) No approval from Board was obtained;

(c) Only Executive Engineer of the Board requested for compulsorily acquiring land;

(d) No approval from State Government was obtained;

(e) NOC from Town and Country Planning Department was not obtained;

(f) No budgetary provision was made for any scheme;

(g) Details of land to be acquired and the locality not mentioned in Section 4 notification.

(h) Two fully developed residential colonies were considered as open land.

The aforesaid objections have been accepted by the  Land Acquisition Officer and therefore, the notification issued under Section 4 is invalid in law and a notification under Section 4 cannot be held to be invalid in respect of a part of the land acquired and valid in respect of another part. The Hon'ble Supreme Court in the case of Union of India and Others Vs. Gopaldas Bhagwan Das and Others (Civil Appeal No.3636 of 2016, decided on 04/02/2020) has held as under:-

"Though this Court has, by its order dated 27.03.2018, referred this case to a larger Bench in view of the decision in Kulsum R. Nadiadwala's case that delay and laches have to be ignored, we are of the view that on the facts of this case, we need not answer this question. This is for the reason that the section 4 notification that was struck down in Kulsum R. Nadiadwala's case is the very notification in the facts of this case. We may also note that in paragraph 13 of the Kulsum R. Nadiadwala's case set out hereinabove, this Court quashed the entire acquisition proceedings stating that they be declared as null and void. We are unable to agree with Ms.Pandey's contention that the Section 4 notification not only deals with various other lands in Village Malad but also deals with a land in a different village altogether viz., Village Wadhawan, and that this Court's judgment did not go to the extent of declaring the acquisition bad so far as village Wadhawan is concerned. So far as village Malad is concerned, where the land in Kulsum R. Nadiadwala's case was land that was adjacent to the present land, the very section 4 notification has been struck down and declared null and void, and this being the case, it would not be in the interest of justice to allow the present appeal in favour of the Union of India, as this would amount to a discrimination between two persons who are otherwise similarly placed."

In light of the aforesaid judgment, the notification issued under Section 4(1) dated 12/07/1994 has become non est in law.

48- The another important aspect of the case is that no notice of any kind at any stage was issued or served to the petitioner by the Land Acquisition Officer. The Land Acquisition Act, 1894 contemplates notice as mandatory condition. See: Narindrajit Singh Vs. State of U.P. reported in (1973) 1 SCC 157, Madhya Pradesh Housing Board Vs. Mohammad Shafi reported in (1992) 2 SCC 168, J & K Housing Board Vs. Kunwar Sanjay Kishan Kaul reported in (2011) 10 SCC 714 and Kulsum R. Nadiadwala Vs. State of Maharashtra reported in (2012) 6 SCC 348.

49- The important aspect of the case is that the amount of compensation awarded in the matter has not been paid to the land owners. The award does not mention the name of the present appellants and therefore, the question of tendering the amount to the appellants does not arise. In short, the notification under Section 4 and 6 of the Act of 1894 have bee held to be illegal by the Collector as no scheme was framed by the Housing Board, the proposal for land acquisition was made by the Executive Engineer, there was no NOC given by the Town and Country Planning Department as well as other grounds. The aforesaid all grounds and reasoning assigned by the Collector have been affirmed by the Commissioner on 03/11/2003 and nothing prevented to the Housing Board to challenge the order passed by the Collector and Commissioner.

50- The Housing Board has not taken any steps till date in respect of development of scheme since 1994, it is only a paper scheme and therefore, in the considered opinion of this Court as the notification issued under Section 4(1) of the Act of 1894 has become non est in law on account of the orders passed by the Collector dated 11/08/2003 and the order dated 03/11/2003 passed by the Commissioner, the same notification which is applicable for the appellants has also become non est in law. The Madhya Pradesh Housing Board has not laid a single brick over the land in question even after expiry of 26 years i.e. from the date of issuance of first notification under Section 4(1) of the Act of 1894.

51- The leaned Single Judge has erred in law and facts in dismissing the writ petition on the ground of delay and laches alone. Resultantly, the order dated 09/09/2009 passed in Writ Petition No.2624/2008 (Satish Kumar Batra and Others Vs. The State of Madhya Pradesh and Others) is set aside. The writ appeal is allowed. The appellants shall be entitled for the same relief, which has been extended to other identically placed person Gajanand Mali, who is petitioner in Writ Petition No.651/1995. No order as to costs.

Certified copy as per rules.