PUBLISHED IN http://judis.nic.in/supremecourt/filename=40461
Page 1
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4824 OF 2013
(Arising out of SLP (C) No. 4722 OF 2012)
Rajendra Nagar Adarsh
Grah Nirman Sahkari Samiti Ltd. … Appellant
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4825 OF 2013
(Arising out of SLP (C) No. 4874 OF 2012)
Yogesh Chand Arora … Appellant
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4826 OF 2013
(Arising out of SLP (C) No. 5041 OF 2012)
Durga Devi Dharmarth Trust & Anr. … Appellants
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4827 OF 2013
(Arising out of SLP (C) No. 5089 OF 2012)
Naresh Chand Arora … Appellant
Versus
State of Rajasthan & Ors. … Respondents
1Page 2
WITH
CIVIL APPEAL NO. 4828 OF 2013
(Arising out of SLP (C) No. 5206 OF 2012)
Madrampura Grih Nirman Sahkari
Samiti Ltd. & Ors. … Appellants
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4829 OF 2013
(Arising out of SLP (C) No. 12072 OF 2012)
Yashmeen Abrar … Appellant
Versus
Union of India & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4830 OF 2013
(Arising out of SLP (C) No. 21205 OF 2012)
Sunita Rathi & Ors. … Appellants
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4831 OF 2013
(Arising out of SLP (C) No. 21226 OF 2012)
Arjun Nagar Vikas Samiti
through its President
Vimla Verma … Appellant
Versus
State of Rajasthan & Ors. … Respondents
J U D G M E N T
2Page 3
Jagdish Singh Khehar
1. The instant common order will dispose of the following matters:-
(i) Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd.
vs. State of Rajasthan & Ors., Civil Appeal arising out of
SLP (C) No. 4722 of 2012);
(ii) Yogesh Chand Arora vs. State of Rajasthan & Ors., Civil
Appeal arising out of SLP (C) No. 4874 of 2012);
(iii) Durga Devi Dharmarth Trust & Anr. vs. State of Rajasthan
& Ors., Civil Appeal arising out of SLP (C) No. 5041 of
2012);
(iv) Naresh Chand Arora vs. State of Rajasthan & Ors., Civil
Appeal arising out of SLP (C) No. 5089 of 2012);
(v) Madrampura Grih Nirman Sahkari Samiti Ltd. & Ors.vs.
State of Rajasthan & Ors., Civil Appeal arising out of SLP
(C) No. 5206 of 2012);
(vi) Yashmeen Abrar vs. Union of India & Ors., Civil Appeal
arising out of SLP (C) No. 12072 of 2012);
(vii) Sunita Rathi & Ors. vs. State of Rajasthan & Ors., Civil
Appeal arising out of SLP (C) No. 21205 of 2012);
(viii) Arjun Nagar Vikas Samiti through its President Vimla
Verma vs. State of Rajasthan & Ors., Civil Appeal arising
out of SLP (C) No. 21226 of 2012);
2. Leave granted in all the matters.
3. Insofar as the instant judgment is concerned, Rajendra Nagar
Adarsh Grah Nirman Sahkari Samiti Ltd. vs. State of Rajasthan & Ors.
(i.e., the Civil Appeal arising out of SLP (C) No. 4722 of 2012 shall be
treated as the lead case. The factual narration recorded herein, shall
be based on the pleadings thereof. However, in situations wherein,
during the course of hearing, reference has been made to pleadings
from other cases, the same will also be adverted to.
3Page 4
4. The appellants herein are all land losers. Their lands were
acquired for establishing a zonal office complex, and residential
quarters for Railway staff, for the North Western Railway Zone, at Jaipur
in the State of Rajasthan.
5. The sequence of facts commencing from the initiation, and
leading to the finalization of the acquisition proceedings, are of pointed
significance, in the present controversy. As such, all the relevant factual
details, are being narrated hereunder, first of all.
6. On 15.11.1996, the Officer on Special Duty, North Western
Railway, posted at Jaipur, addressed a communication to the
Commissioner, Jaipur Development Authority, Jaipur, indicating that 26
bighas of Government land was available in front of the Getor Jagatpura
railway station. It was pointed out, that the aforesaid land had been
allotted to the Scouts & Guides Organization. It was submitted, that the
said land was ideally located, and could be effectively put to use for
establishing the required infrastructure for the North Western Railway
Zone complex, at Jaipur. It was accordingly requested, that the said
Government land be transferred to the Railways. A relevant extract of
the aforesaid letter is reproduced hereunder:-
“As you are aware, the new North-Western Railway Zone has
been set up with headquarters at Jaipur.
The actual requirements of land for setting up of the Zonal office
and Quarters at Jaipur is being worked out which may take some
time, but in any case adequate railway land is not available at
Jaipur for the purpose.
It is understood that 26 Bighas of land of the State Government to
allotted to Scouts & Guides Organization is available in front of
Getor Jagatpura Railway Station. This is an ideal location for use
4Page 5
by the North-Western Railway and it is requested that this land
may be transferred to Railway early for immediate use. Further
requirements of land will be indicated to the State Government in
due course.”
(emphasis is ours)
The first communication on the record of the case, relating to the
requirement of land for setting up the North Western Railway Zone
Complex, reveals the desire (of the Railways), that vacant Government
land be transferred by the State Government, to the Railways. At this
juncture, one would notice, that there is no thought about acquiring land
for the Railways.
7. Following the aforesaid communication dated 15.11.1996, the
Officer on Special Duty, North Western Railway, addressed another
letter dated 12.12.1996 to the Commissioner, Jaipur Development
Authority, Jaipur, depicting the total requirements of the Railways for
setting up the aforesaid zonal headquarters. The text of the said letter
is being reproduced hereunder:-
“In continuation of this office letter referred above the appropriate
requirement of land for setting up of the zonal office and staff
quarters at Jaipur has been assessed and about 87 acres of land
is considered as necessary for this purpose.
It is proposed to have the land for the above purpose at the
locations at Getor Jagatpura. At least 40 acres of land will be
required including the 20 bigha for which a request has already
been made for transfer vide this office letter referred above. For
the reasoning 47 acres land nearest to the Jaipur Railway Station
in the Prithviraj Nagar on Jaipur-Ajmer Road will be suitable.
It is therefore requested that 40 acres land including 20
bigha of State Government land now used by scouts and guides
at Getor Jagatpura and 47 acres land in Prithviraj Nagar scheme
on Jaipur Ajmer Road nearest to Jaipur Railway Station may be
acquired and transferred to Railways.
Necessary plans of both the areas may kindly be made
available to Railways.”
5Page 6
(emphasis is ours)
In its follow up action, the State Government was informed about the
extent of land required. The Railways sought governmental land to
satisfy its requirement. The process thus suggests, that the Railways
and the State Government, were jointly pursuing the objective. The
State Government was requested to acquire some more land, so as to
make up the deficiency, and to transfer the same to the Railways.
8. Mr. Ram Vilas Paswan, the then Union Minister for Railways
addressed a letter dated 30.12.1996 to Mr. Bhairon Singh Shekhawat,
the then Chief Minister of the State of Rajasthan, indicating the Union
Government’s desire, to set up a zonal complex for the North Western
Railways, at Jaipur. The Railways requested the State Government, to
provide the required land “free of cost”. It was emphasized by the Union
Minister for Railways, that the setting up of the new Railway Zone at
Jaipur, would improve train services to and within the State of
Rajasthan, and thereby, meet the expectations of public and private
entities, of the area. Relevant extract of the aforesaid letter is being
reproduced hereunder:-
“In order to improve the train services in Rajasthan, meet the
expectations of public and private more responsive
administration, the Railways have decided to create a new Zone,
North Western Railway with Zonal Hqrs. Office at Jaipur.
The setting up of the Railway Zonal Hqrs. Office, would
require office accommodation, housing for staff, and other
ancillary facilities, all of which need about 150 to 200 acres of
land.
May I therefore request you to ask the concerned officials to
identify a suitable piece of land, about 150-200 acres at Jaipur,
and provide the same to the Railways free of cost for setting up
6Page 7
the Zone. This gesture of the State Government would go a long
way in enabling us to make the Zone functional early.”
(emphasis is ours)
A perusal of the aforesaid letter reveals, that the Railway Ministry’s
request was for about 150-200 acres of land. The land would be used
for establishing zonal offices for the North Western Railway Zone, and
also, for raising residential quarters for Railway staff. The letter
indicated, that the gesture of the State Government to provide land to
the Railways “free of cost”, would go a long way in making the zone
functional. If the acquired land, was to exclusively serve the purpose of
the Railways, then financial contribution thereto by the State
Government, would be unthinkable. But strangely, the Union Minister
for Railways was expecting the State Government to provide the
required land, even after acquiring it, “free of cost”. Logically, this would
be acceptable, when the State (of Rajasthan) was to be a joint
beneficiary. The incidental benefit to the State, is apparent from the
opening words of the letter. The Union Minister in his above letter
emphasized, that the proposed project would “…improve the train
services in Rajasthan, meet the expectations of public and private…”.
9. On 28.2.1997, the Commissioner, Jaipur Development Authority,
pursuant to the correspondence with the Officer on Special Duty, North
Western Railway, pressed the Secretary, Department of Transport,
Government of Rajasthan, to initiate acquisition proceedings in respect
of land identified at villages Bindayaka and Todi Ramjanipura, in tehsil
Sanganer of district Jaipur. Relevant portion of the aforesaid letter is
being reproduced below:-
7Page 8
“Please peruse the letter dated 12.12.1996 by Officer, North
Western Railway Zone, Jaipur. The Railway had demanded land
for Railway Zonal Office and staff quarters. You have discussed
in this reference with the Commissioner in the room of Chief
Secretary. The land village Bindayaka and Todi Ramjanipura,
Tehsil Sanganer is required by Railway department being near to
the Jagatpura Getor Railway Station.
It would be relevant to acquire the required land by
Transport Department, Rajasthan, Jaipur. Therefore, the
proceedings of acquisition of 4-39 hectares of land of village
Bindayaka and 9-91 hectares of Todi Ramjanipura, Tehsil
Sanganer, Jaipur is to be acquired. The description of the land to
be acquired, trace map and six copies of land record are annexed
with the prayer that the acquisition proceedings be done at your
department level for the Railway Department immediately.”
(emphasis is ours)
10. On 29.3.1997, the Deputy Secretary, Transport Department,
Government of Rajasthan, wrote a letter to the District Collector, Jaipur,
requiring him to furnish details of land, as also, land records pertaining
to villages Bindayaka and Todi Ramjanipura, which was being
considered for acquisition for the North Western Railway Zonal
complex. The text of the aforesaid letter, is being reproduced
hereunder:-
“The Secretary, Jaipur Development Authority, Jaipur by letter no.
P9 (295) JDA/Acqui. Off./Land Acqui./97/362 dated 20.2.1997
informed this office that Railway Department vide letter dated
12.12.1996 placed a proposal for the land for Zonal Office in
Jaipur and Staff Quarters. As per proposal land of village
Bindayaka and Todi Ramjanipura, Tehsil Sanganer, Jaipur near
Getor Jagatpura Railway Station is to be acquired. In this
reference information regarding details of land, trace map and
land record alongwith the process of acquisition and inspection
report of the acquisition officer be sent to this office.”
(emphasis is ours)
8Page 9
11. On 9.5.1997, a communication was addressed by the Officer on
Special Duty, North Western Railway, to the Chief Secretary,
Government of Rajasthan, reminding him of the request made by the
Union Minister for Railways. Relevant extract of the said
communication dated 9.5.1997, is being set out hereunder:-
“It had been requested by Hon’ble Minister for Railways, vide this
D.O. letter referred above (copy enclosed). To the Chief Minister
of Rajasthan, to identify a suitable piece of land about 150-200
acres at Jaipur and to provide the same to the railways, free of
cost, for setting up of new Railway Zone at Jaipur. Action taken
in the matter by the State Government may please be advised, for
taking further necessary action accordingly.
The State Government officials required to be contacted for
pursuing the case may also please be advised so as to enable
me to instruct my officers for expediting the process of acquisition
of land for setting up of facilities for North Western Railway zone.”
(emphasis is ours)
A perusal of the letter extracted above reveals, that officers of the
Railways establishment were in touch with highest levels of
governmental functionaries in the State of Rajasthan, and were
seriously soliciting land “free of cost” for establishing the North Western
Railway Zone complex.
12. Pursuant to the aforesaid correspondence, the Secretary,
Transport Department, Government of Rajasthan issued a notification
under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred
to as, the Acquisition Act), indicating the State Government’s desire to
acquire 15.50 hectares of land situated in the revenue estate of villages
Bindayaka and Todi Ramjanipura, in tehsil Sanganer, of district Jaipur.
The public purpose depicted therein was, that the aforesaid land was
9Page 10
required to establish a zonal office of the North Western Railways and
for raising residential quarters for Railway staff. The aforesaid
notification was duly published in the State Government gazette.
Importantly, the acquisition of land for the project under reference, was
being made by the Transport Department of the Government (of
Rajasthan), presumably because the setting up of the project was
aimed at improving transport services to and within the State, for the
benefit of public and private entities. In terms of the mandatory
requirements of the Acquisition Act, the aforesaid notification under
Section 4, was published on 6.9.1997 in the “Dainik Navjyoti” and on
7.9.1997 in the “Rajasthan Patrika”. The pleadings of the case bearout, that publication in the locality was also made on 10.4.1998.
13. Yet again, the Deputy Chief Engineer, North Western Railway
addressed a communication dated 11.6.1998 to the Deputy Secretary,
Transport Department, Government of Rajasthan intimating him, that
even though permission had been received to acquire 69 bighas (17.52
hectares) of land near Getor Jagatpura railway station, yet no further
details had been communicated by the State Government, in respect of
the action taken by it, for acquiring the aforesaid land for the Railways,
after the publication of the notification under Section 4 of the Acquisition
Act. The aforesaid factual position, is evident from the letter dated
11.6.1998, which is reproduced hereunder:-
“In the above subject it is submitted that there is no information of
further proceedings after notification under Section 4 has been
published on 19.8.1997. Please, inform this office immediately
after proper proceedings to acquire land for Railway Zonal Office
and staff quarters.
10Page 11
It is pertinent to mention that permission has been received by
this office from Railway Ministry to acquire 69 bighas (17.52
hectare) land near Getor Jagatpura Railway Station. Hence
inform this office immediately regarding proceedings to acquire of
the above land.”
The above communication reveals that the Railways, as well as, the
State Government were proceeding in the matter in complete tandem.
14. Objections were invited under Section 5A of the Acquisition Act
from persons interested in the land. Having considered the objections
raised by the persons interested, the Land Acquisition Collector
submitted a report to the Government. Insofar as Rajendra Nagar
Adarsh Grah Nirman Sahkari Samiti Ltd. (appellant in the Civil Appeals
arising out of SLP (C) no. 4722 of 2012, which is hereinafter referred to
as, the appellant Samiti) is concerned, the determination was as under:-
“An application on 8.4.2009 was filed by Shrawan Singh Khinchi,
Hemant Goyal, Prabhu Lal Meena, Sharda Purohit, Nirmala,
Suresh Kumar Sharma, Yogesh Aroda, Naresh Chand Aroda,
Ganga Sahay Meena, residents/members of Madrampura Grih
Nirman Sahakari Samiti planning Prakash Nagar and Gopalpura
Grih Nirman Sahakari Samiti planning Jagatppura first (Mayur
Vihar) stating that the tenants of Khasra no. 280, 282, 284 and
291 Girijadevi and Rampal Das Swami sold and handed over the
possession of the land to Madrampura Grih Nirman Sahakari
Samiti and Gopalpura Grih Nirman Sahakari Samiti in 1981 and
received the entire sale consideration. The societies have
allotted the land to the plot holders/members from 1981 to 1983
and most of the members have constructed houses before the
acquisition proceedings. The applicants have submitted that the
houses have been constructed before the acquisition
proceedings. Hence if the land is left out of acquisition being on
one side corner only, it will not affect the railway scheme. The
applicants submitted that the tenant Girija Devi and Rampal Das
Swami are not interested persons, therefore, their objections
should not be considered and they should be given 15 days time
to file objections.
Objections of the applicants were considered and the
application dated 8.4.1999 is filed which is after due date
5.4.1999. Even then the claim is being decided on merits in the
interest of justice. The applicants have not produced any
11Page 12
documents or evidence in their favour. As it is determined
hereinabove that the society cannot get any right only on the
basis of agreement to sale and similarly the members cannot get
any legal right on the basis of allotment letter issued by society.
This matter is purely a matter between the Khatedar and society
and its members. The plot holders cannot be considered as
interest persons to get compensation. They can get
compensation from the Khatedars. Hence the objection is
rejected.
(emphasis is ours)
A perusal of the aforesaid determination reveals, that the appellant
Samiti had not filed its objections within the prescribed period of
limitation, and as such, its objections could have been rejected simply
because the same were filed belatedly. Yet the matter was examined
on merits. The claims of the appellant Samiti were found to be
unsustainable because the appellant Samiti did not have any right to file
objections. In this behalf it was noticed, that the appellant Samiti had
relied on agreements to sell in respect of the acquired land.
Agreements to sell, it was felt, did not vest any legal right in the
appellant Samiti (on the date of issuance of the notification under
Section 4 of the Acquisition Act).
15. On 19.8.1997, the State Government authorized the OSD-II i.e.
the Collector, Jaipur, to enter into the land sought to be acquired.
16. After having dealt with the objections of interested persons
including the appellant Samiti, on the subject of compensation, it was
observed as under:-
It was considered as to who should be given the compensation of
the acquired land. The objections filed before this court makes it
clear that certain Khatedar tenants have transferred their land to
the housing societies or certain other persons and construction
has also been made by such persons. First of all, no such sale
agreement has been filed before this court. Secondly land cannot
12Page 13
be considered to be sold on the basis of agreement to sale.
According to Section 17 of the Registration Act, any immoveable
property of value more than Rs.100/- is required to be registered
compulsorily. Hence any transfer of possession by unregistered
document is not valid. Hon’ble Rajasthan High Court has
confirmed this view in Writ Petition no. 2027/92, 1017/92, 4102/91
by judgment passed on 8.12.1992. Hence the transfer by way of
agreement to the housing society cannot be recognized. And
subsequent transfer of possession is illegal. It has been settled in
the case of Banwari Lal Vs. State of Rajasthan & Ors., 1986 (2)
WLN 648, that such transfer of land for non-agricultural purpose
is useless. Transfer of agricultural land for non-agricultural
purposes is against the provisions of Section 42A of the
Rajasthan Tenancy Act and Section 90A of the Land Revenue
Act. Thus any constructions made by persons other than
Khatedars on the land under acquisition are illegal. Therefore
compensation for the illegal construction is not proper.”
(emphasis is ours)
17. Having rejected the objections raised by the persons interested
(including all those at whose behest, the present proceedings have
been initiated before this Court), the State Government notified its
declaration under Section 6 of the Acquisition Act, in the State
Government gazette, expressing its final determination for acquiring the
land in question. The aforesaid declaration dated 13.1.1999 was
published in the State Government gazette dated 21.1.1999.
18. Thereafter, public notices were issued by the Land Acquisition
Officer, intimating all interested persons the intent of the State
Government to take possession of the acquired land. On 21.3.2001, the
Land Acquisition Officer passed an award, determining the
compensation payable to land owners, whose land was being acquired.
19. The first contention advanced at the hands of the learned counsel
for the appellants was, that the instant acquisition proceedings
emerging out of the notification issued under Section 4 of the
13Page 14
Acquisition Act (dated 19.8.1997), and the consequential declaration
under Section 6 of the Acquisition Act (dated 13.1.1999) could not have
been issued by the State Government. In fact, it was the pointed
submission of the learned counsel for the appellants, that the State
Government had no jurisdiction to acquire the land in question. In this
behalf it was submitted, that the land was for the use and utility of the
Railways, namely, for establishing zonal offices for the North-Western
Zone, as also, for raising residential quarters for the staff to be posted
there. Since Railways is a Union subject (under entry 22 of the Union
List, in the Seventh Schedule to the Constitution of India), it was
submitted, that it is the Union Government alone, which had the
jurisdiction to acquire the land in question. In so far as the instant
aspect of the matter is concerned, learned counsel for the appellants
invited our attention to Sections 4 and 6 of the Acquisition Act. The
aforesaid provisions are being extracted herein :
“4. Publication of preliminary notification and powers of officers
thereupon—(1) Whenever it appears to the appropriate
Government that land in any locality is needed or is likely to be
needed for any public purpose or for a company a notification to
that effect shall be published in the Official Gazette [and in two
daily newspapers circulating in that locality of which at least one
shall be in the regional language] and the Collector shall cause
public notice of the substance of such notification to be given at
convenient places in the said locality the last of the dates of such
publication and the giving of such public notice, being hereinafter
referred to as the date of publication of the notification.
(2) Thereupon it shall be lawful for any officer, either, generally or
specially authorised by such Government in this behalf, and for
his servants and workmen, to enter upon and survey and take
levels of any land in such locality;
to dig or bore in the sub-soil;
14Page 15
to do all other acts necessary to ascertain whether the land
is adapted for such purpose;
to set out the boundaries of the land proposed to be taken
and the intended line of the work (if any) proposed to be
made thereon;
to mark such levels, boundaries and line by placing marks
and cutting trenches,
and, where otherwise the survey cannot be completed and
the levels taken and the boundaries and line marked, to cut
down and clear away any part of any standing crop, fence
or jungle:
Provided that no person shall enter into any building
or upon any enclosed court or garden attached to a
dwelling-house (unless with the consent of the
occupier thereof) without previously giving such
occupier at least seven days' notice in writing of his
intention to do so.
xxx xxx xxx
6. Declaration that land is required for a public purpose.— (1)
Subject to the provisions of Part VII of this Act, when the
appropriate Government is satisfied after considering the report, if
any, made under section 5A, sub-section (2), that any particular
land is needed for a public purpose, or for a company, a
declaration shall be made to that effect under the signature of a
Secretary to such Government or of some officer duly authorised
to certify its orders an different declarations may be made from
time to time in respect of different parcels of any land covered by
the same notification under section 4, sub-section (!), irrespective
of whether one report or different reports has or have been made
(wherever required) under section 5-A, sub-section (2):
Provided that no declaration in respect of any particular land
covered by a notification under section 4, sub-section (1),--
(i) published after the commencement of the Land
Acquisition (Amendment and Validation) Ordinance, 1967
but before the commencement of the Land Acquisition
(Amendment) Act, 1984 shall be made after the expiry of
three years from the date of the publication of the
notification; or
15Page 16
(ii) published after the commencement of the Land
Acquisition (Amendment) Act, 1984, shall be made after the
expiry of one year from the date of the publication of the
notification:
Provided further that no such declaration shall be
made unless the compensation to be awarded for
such property is to be paid by a company, or wholly
or partly out of public revenues or some fund
controlled or managed by a local authority.
Explanation 1.-In computing any of the periods
referred to in the first proviso, the period during which
any action or proceeding to be taken in pursuance of
the notification issued under Section 4, sub-section
(1), is stayed by an order of a Court shall be
excluded.
Explanation 2.-Where the compensation to be
awarded for such property is to be paid out of the
funds of a corporation owned or controlled by the
State, such compensation shall be deemed to be
compensation paid out of public revenues].
(2) Every declaration shall be published in the Official Gazette,
and in two daily newspapers circulating in the locality in which the
land is situate of which at least one shall be in the regional
language, and the Collector shall cause public notice of the
substance of such declaration to be given at convenient places in
the said locality (the last of the date of such publication and the
giving of such public notice, being hereinafter referred to as the
date of publication of the declaration), and such declaration shall
state] the district or other territorial division in which the land is
situate, the purpose for which it is needed, its approximate area,
and where a plan shall have been made of the land, the place
where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the
land is needed for a public purpose or for a Company, as the
case may be; and, after making such declaration the appropriate
Government may acquire the land in manner hereinafter
appearing.”
(emphasis is ours)
16Page 17
A perusal of Sections 4 and 6 extracted above reveal, that it is the
“appropriate Government” which is to be satisfied about the public
purpose for which the land in question is to be acquired. And it is the
“appropriate Government” alone, which is vested with the
responsibilities contemplated under the aforesaid Sections 4 and 6.
Accordingly, it is only the “appropriate Government” which can issue the
required notifications expressing the intention to acquire land, and
thereafter, the postulated declaration, after examining the objections of
the persons interested.
20. In order to substantiate the appellants’ contention, that jurisdiction
to acquire land for the Railways, could have been exercised only by the
Central Government, and that the State Government had no authority to
acquire land for the Railways, learned counsel placed reliance on
Section 3(ee) of the Acquisition Act. Section 3(ee) aforementioned is
being reproduced below :
“3(ee) The expression "appropriate Government" means in
relation to acquisition of land for the purposes of the Union, the
Central Government, and, in relation to acquisition of land for any
other purposes, the State Government.”
Relying on Section 3(ee) extracted above, it was the submission of the
learned counsel for the appellants, that in relation to acquisition of land
for the Union, the Central Government alone had the jurisdiction to
acquire the land. Accordingly, it was contended, that it was the Central
Government alone, which had the jurisdiction to issue the prescribed
notification under Section 4 of the Acquisition Act, (expressing the
intention of the Union Government to acquire, the land). Having
17Page 18
thereby, brought the “appropriate Government’s” intention to acquire the
land to the notice of all interested persons, and having considered the
objections (if any) filed at the behest of such interested persons, the
Central Government alone could have issued the consequential
declaration under Section 6 of the Acquisition Act. Learned Counsel for
the appellants was emphatic, that the notification to acquire land for the
Railways could have only been issued by the Central Government.
21. Learned counsel for the appellants ventured to substantiate his
above contention, by reading the definition of the term ‘appropriate
Government’ along with the said words used in Sections 4, 5, 5A(2), 6,
7, the first and second proviso to Section 11(1), Sections 12 to 14, 15A,
16, 17(1) and (2), 31(3), 40, 41, 48, 49(2) and 50 of the Acquisition Act.
The thrust of the instant submission is being summarized hereunder:
Firstly, referring to Section 4 of the Acquisition Act, it was the
submission of the learned counsel for the appellants, that the use of the
term “appropriate Government” in Section 4(1) of the Acquisition Act,
with reference to the publication of the intention to acquire land (by way
of a notification) has to be visualized with reference to the definition of
the said term under Section 3(ee) of the Acquisition Act. On such
examination, according to the learned counsel, it would clearly emerge,
that it was only the Central Government which could have issued the
notification dated 19.8.1997. But in the present case, the said
notification has been issued by the Government of Rajasthan.
18Page 19
Secondly, with reference to Section 5 of the Acquisition Act, it was
submitted, that the term “Collector” used therein, must be viewed with
reference to Section 3(c) of the Acquisition Act. Section 3(c) is being
extracted hereunder:
“3(c) the expression "Collector" means the Collector of a district,
and includes a Deputy Commissioner and any officer specially
appointed by the Appropriate Government to perform the
functions of a Collector under this Act”
Based on the aforesaid definition of the term “Collector, it was the
contention of the learned counsel for the appellants, that the nomination
of the “Collector/Deputy Commissioner/Officer specially appointed” has
to be made by the “appropriate Government”. Since the “appropriate
Government” in the facts and circumstances of the present case is the
Central Government, according to the learned counsel, the nomination
of the ‘Collector’ with reference to Section 5 of the Acquisition Act, could
only have been ordered by the Central Government; whereas, it is
apparent from the facts of this case, that the State Government by an
order dated 19.8.1997, authorized the SDO-II/Land Acquisition
Officer/Collector, Jaipur, as “Collector” for all purposes connected with
the present acquisition. The nomination of the Collector by the State
Government, when the land was being acquired for the benefit of the
Railways, according to the learned counsel, was clearly beyond the
jurisdiction of the State Government.
Thirdly, with reference to Section 5A(2) of the Acquisition Act, it was
submitted, that the objections under Section 5 of the Acquisition Act are
to be made to the Collector in writing. And, it is the Collector who is to
19Page 20
afford an opportunity of hearing to the persons concerned, before
submitting a report to the appropriate Government. Learned counsel
vehemently contended, that in interpreting Section 5A(2) of the
Acquisition Act, the term ‘Collector’ has to be interpreted in consonance
with the definition thereof under Section 3(c), and with reference to the
term “appropriate Government” defined in Section 3(ee) of the
Acquisition Act. Thus viewed, it was the submission of the learned
counsel, that not only the “Collector” to whom objections were meant to
be addressed, but the Collector who had to consider and dispose of the
said objections, ought to have been a person nominated by the Central
Government. Herein, according to the learned counsel, admittedly the
State Government had notified the “Collector” for acquisition of the land
in question. The receipt of the objections, as also, the determination
thereof, must, therefore, be deemed to have been rendered by an
authority having no jurisdiction (either to receive the objections or to
submit a report to the appropriate Government with reference to said
objections), in the matter.
Fourthly, it was contended, that the declaration under Section 6 of the
Acquisition Act is to be made on the satisfaction of the “appropriate
Government”. Herein also, viewed with reference to the definition of the
term ‘appropriate Government’ in Section 3(ee) of the Acquisition Act, it
was submitted, that it was the Central Government alone whose
satisfaction was material, whereupon, the Central Government could
have issued the postulated declaration (contemplated under Section 6
of the Acquisition Act). Herein, according to the learned counsel,
20Page 21
admittedly the declaration was made on 13.1.1999 by the State
Government under Section 6 of the Acquisition Act. As such, it was
asserted that the same lacked any authority of law.
Fifthly, according to the learned counsel for the appellants, under
Section 7 of the Acquisition Act, after complying with the procedure
contemplated under Section 6, the “appropriate Government” (or some
officer authorized by the “appropriate Government”) is to direct the
Collector “to take order for the acquisition of the land”. The aforesaid
procedure contemplated under Section 7, according to learned counsel
for the appellants, has also been vested with the Central Government.
Insofar as the present acquisition proceedings are concerned, it was the
Central Government which had to direct the Collector to take
appropriate action contemplated under Section 7 of the Acquisition Act.
Since in the facts of the instant case, it is the Government of Rajasthan,
which had issued the aforesaid direction, according to learned counsel,
the same violates the mandate of Section 7 of the Acquisition Act.
Sixthly, learned counsel for the appellants placed reliance on the first
and the second provisos to the Section 11(1) of the Acquisition Act, in
order to contend, that while preparing the award with reference to the
acquired land, and while determining the true area of the acquired land,
and the compensation payable therefor, as also, the appropriation of
such compensation amongst persons interested, the power and
authority therefor, is vested in the Collector (with the previous approval
of the “appropriate Government”). Yet again, it was the contention of
21Page 22
the learned counsel for the appellants, that the provisos referred to
hereinabove, were bound to be appreciated with reference to the
definition of the term “Collector” in Section 3(c), and the term
‘appropriate Government’ under Section 3(ee) of the Acquisition Act. In
so doing, according to learned counsel, the inevitable result would be,
that the “appropriate Government” contemplated, is the Central
Government. And, accordingly, the Collector contemplated therein,
would be one nominated by the Central Government. It was pointed
out, that for the acquisition proceedings under reference, the approval
of the State Government, and not the Central Government was sought
by the Collector. It was further pointed out, that the concerned Collector
had been nominated by the State Government. For the aforesaid
reasons (principally on the same basis, as noticed in the foregoing
contentions), it was submitted, that the instant action of acquisition, was
in clear violation of the mandate of the provisions of the Acquisition Act.
According to learned counsel, all the above actions, had to be taken by
a Collector nominated by the Central Government, and upon the
previous approval of the Central Government. Since the position in the
facts and circumstance of the present case is not so, it was submitted,
that the instant process of acquisition, was in clear violation of the
mandate of the above-mentioned provisions of the Acquisition Act.
Seventhly, with reference to Sections 12, 13, 13A and 14, it was
submitted, that the term ‘Collector’ used therein, had to be viewed with
reference to Section 3(c) of the Acquisition Act, inasmuch as, the
Collector in the facts of the present case, had to be nominated by the
22Page 23
Central Government, and therefore, for the procedure contemplated by
the provisions referred to above, was required to be executed by a
Collector nominated by the Central Government. In the present case,
the State Government, by its order dated 19.8.1997 authorized the
SDO-II/Land Acquisition Collector, Jaipur, to carry out the functions
contemplated under Sections 12, 13, 13A and 14 of the Acquisition Act.
As such, according to learned counsel, the aforesaid procedure having
been carried out by a person having no authority to do so, must be
deemed to have been carried out without jurisdiction, and in violation of
the above mentioned provisions of the Acquisition Act.
Eighthly, the term ‘appropriate Government’ referred to in Sections 16,
17(1), 17(2), 31(3), 40, 41 and 49(2), according to the learned counsel,
could only have meant the Central Government, and not the State
Government. It was submitted, that in giving effect to the above
provisions, the Central Government had unquestionably remained out of
reckoning, and it was the Government of Rajasthan, which has
shouldered all the responsibilities contemplated under the said
provisions. For just the same reasons, as have been noticed above, it
was submitted that the scheme of the Acquisition Act very clearly
defines the manner in which the provisions thereunder, were to be given
effect to. Since the land was being acquired for the Railways, according
to learned counsel representing the appellants, the responsibilities
ought to have been shouldered by the Central Government, whereas,
the entire action for the acquisition of the land in the present
controversy, was dealt with by the State Government.
23Page 24
22. Having given our thoughtful consideration to the issue canvassed
at the hands of the learned counsel for the appellants, we are of the
view that it is necessary in the first instance to determine the subject of
legislative competence. If the determination of legislative competence
so determined falls in the realm of the Parliament, then the
contemplated appropriate Government would be the Central
Government. Whereas, if the legislative competence falls in the realm
of the State Legislatures, then the appropriate Government in the facts
and circumstances of the present case would be the State Government.
During the course of hearing, while examining the issue of legislative
competence, our attention was invited to entry 33 of the Union List,
entry 36 of the State List and entry 42 of the Concurrent List (of the
Seventh Schedule of the Constitution of India). All the aforesaid entries
are being extracted hereunder:
Entry 33 (in list I, of the Seventh Schedule)
“33. Acquisition or requisitioning of property for the purposes of
the Union.”
Entry 36 (in list II, of the Seventh Schedule)
“36. Acquisition or requisitioning of property, except for the
purposes of the Union, subject to the provisions of entry 42 of List
III.”
Entry 42 (in list III, of the Seventh Schedule)
“42. Acquisition and requisitioning of property.”
Before proceeding further, it would be relevant to point out that entries
33 and 36 (in lists I and II respectively, of the Seventh Schedule) were
omitted by the Constitution (Seventh Amendment) Act, 1956. And in
place of the above two entries, entry 42 (in list III, of the Seventh
24Page 25
Schedule) was substituted (through the same constitutional
amendment). Prior to above substitution, Entry 42 in List III read as
under:
Entry 42 (in list III, of the Seventh Schedule), prior to its substitution:
“42. Principles on which compensation for property acquired or
requisitioned for the purpose of the Union or of a State or for any
other public purpose is to be determined, and the form and the
manner in which such compensation is to be given.”
23. The scope and effect of aforesaid three entries, falling in three
different lists of the Seventh Schedule were examined by a Constitution
Bench of this Court in State of Bombay v. Ali Gulshan, AIR 1955 SC
810. The question posed, and the determination rendered thereon, are
being extracted hereunder:
“2. On the hearing of the petition before Tendolkar, J., the State
succeeded on the ground that the purpose for which the
requisition was made was a "public purpose" within the meaning
of the Act. But, on appeal, it was held that though the requisition
was for a public purpose, the requisition order was invalid, as the
public purpose must be either a purpose of the Union, or a
purpose of the State and in this particular case the
accommodation being required for housing a member of a foreign
Consular staff was a Union purpose, which was outside the scope
of the powers of the State.
xxx xxx xxx
5. The ultimate source of a authority to requisition or acquire
property is be found in article 31 of the Constitution. The
requisition or acquisition must be for a public purpose and there
must be compensation. This article applies with equal force to
Union legislation and State legislation. Items 33 and 36 of List I
and List II of the Seventh Schedule to the Constitution empower
respectively Parliament and the State Legislatures to enact laws
with respect to them.
6. The reasoning by which the learned appellate Judges of the
Bombay High Court reached their conclusion is shortly this. There
25Page 26
can be no public purpose, which is not a purpose of the Union or
a purpose of the State. There are only these two categories to
consider under the statute, as the words "any other purpose" in
the particular context should be read ejusdem generis with "the
purpose of the State". The provision of accommodation for a
member of the foreign consulate staff is a "purpose of the Union"
and not a "purpose of the State".
7. We are unable to uphold this view as regards both the
standpoints. Item 33 in the Union Legislative List (List I) refers to
"acquisition or requisitioning of property for the purposes of the
Union". Item 36 in the State List (List II) relates to "acquisition or
requisitioning of property, except for the purposes of the Union,
subject to the provisions of entry 42 of List III". Item 42 of the
Concurrent Legislative List (List III) speaks of "the purpose of the
Union or of a State or for any other public purpose".
Reading the three items together, it is fairly obvious that the
categories of "purpose" contemplated are three in number,
namely, Union purpose, State purpose, and any other public
purpose. Though every State purpose or Union purpose must be
a public purpose, it is easy to think of cases where the purpose of
the acquisition or requisition is neither the one nor the other but a
public purpose. Acquisition of sites for the building of hospitals or
educational institutions by private benefactors will be a public
purpose, though it will not strictly be a State or Union purpose.
When we speak of a State purpose or a Union purpose, we think
of duties and obligations cast on the State or the Union to do
particular things for the benefit of the public or a section of the
public. Cases where the State acquires or requisitions property to
facilitate the coming into existence of utilitarian institutions, or
schemes having public welfare at heart, will fall within the third
category above-mentioned.
8. With great respect, we are constrained to say that the ejusdem
generis rule of construction, which found favour in the court below
for reaching the result that the words "any other public purpose"
are restricted to a public purpose which is also a purpose of the
State, has scarcely any application. Apart from the fact that the
rule must be confined within narrow limits, and general or
comprehensive words should receive their full and natural
meaning unless they are clearly restrictive in their intendment, it is
requisite that there must be a distinct genus, which must
comprise more than one species, before the rule can be applied.
26Page 27
If the words "any other public purpose" in the Statute in question
have been used only to mean a State purpose, they would
become mere surplusage; Courts should lean against such a
construction as far as possible.
9. Even if it is conceded that the law contemplates only two
purposes, namely, State purpose and Union purpose, it is difficult
to see how finding accommodation for the staff of a foreign
consulate is a Union purpose and not a State purpose. Item 11 in
the Union list specifies "diplomatic, consular and trade
representation" as one of the subjects within the legislative
competence of Parliament, and under article 73 of the
Constitution, the executive power of the Union shall extend to all
such matters.
It can hardly be said that securing a room for a member of the
staff of a foreign consulate amounts to providing for consular
representation, and that therefore it is a purpose of the Union for
which the State cannot legislate. It was conceded by Mr. Rajinder
Narain, Counsel for the Respondent, that there is no duty cast
upon the Union to provide accommodation for the consulate staff,
and this must be so, when we remember that the routine duties of
a Consul in modern times are to protect the interests and promote
the commercial affairs of the State which he represents, and that
his powers, privileges and immunities are not analogous to those
of an ambassador.
The trade and commerce of the State which appoints him with the
State in which he is located are his primary concern. The State of
Bombay is primarily interested in its own trade and commerce
and in the efficient discharge of his duties by the foreign consul
functioning within the State. We are inclined to regard the
purpose for which the requisition was made in this case more as
a State purpose than as a Union purpose.
10. In any event, as already pointed out, "other public purpose" is
a distinct category for which the State of Bombay can legislate, as
the acquisition or requisitioning of property except for the
purposes of the Union, is within its competence under item 36 of
the State List.
11. There is another way of looking at the question involved. An
undertaking may have three different facets or aspects, and may
serve the purpose of a State, the purpose of the Union and a
general public purpose. Even if one may regard the requisition of
a room for the accommodation of a member of a Consulate as
27Page 28
one appertaining to a Union purpose, it does not necessarily
cease to be a State purpose or a general public purpose. In this
view also, the requisition in this case must be held to have been
validly made.”
(emphasis is ours)
In its determination with reference to public purpose (relatable to
acquisition proceedings), this Court in the judgment referred to
hereinabove, clearly held, that public purpose may be relatable to the
Central Government, alternatively, it may be relatable to the State
Government. Besides the aforesaid two alternatives, there is also a
third alternative, namely, a situation wherein the public purpose is a
general public purpose, which is neither exclusively relatable to the
Central Government and/or fully relatable to the State Government.
The third alternative, would be a situation, wherein the cause in
question furthers a common public purpose and is relatable both to a
Union and a State cause.
24. It would be relevant to mention, that the judgment rendered by
this Court in State of Bombay vs. Ali Gulshan (supra) was brought to our
notice by the learned counsel for the appellants. The purpose for doing
so, was to enable us to examine the matter in the correct perspective.
For this, learned counsel for the appellants pointed out, that the law
declared by the above judgment, came to be negated by the
Constitution (Seventh Amendment) Act, 1956, which repealed entries
33 and 36 (in lists I and II respectively, of the Seventh Schedule) and
substituted entry 42 (in list III, of the Seventh Schedule).
28Page 29
25. Before recording any final determination, we may now refer to the
judgments cited at the behest of the appellants. Reference was made
to the decision rendered by the Allahabad High Court in Balak & Ors. v.
State of Uttar Pradesh & Anr., AIR 1962 Allahabad 208. The facts in
the afore-cited judgment are almost similar to the controversy in hand.
From the cited judgment, our attention was drawn to the following
observations:
“6. Now I proceed to discuss the merits of the writ petition. The
main contention of Mr. S.C. Khare is that the acquisition
proceedings are for a Union purpose. It was not open to the State
Government to initiate the acquisition proceedings. The impugned
notifications mention that land is being acquired for construction
of staff quarters in connection with the North Eastern Railway
Head-quarters Scheme. This is a Union purpose. But it has been
urged for the opposite parties that, the State Government has
authority to acquire land for the benefit of the Union.
xxx xxx xxx
13. We have to consider whether the 1952 notification can be
considered to be an order by the President of India, although the
notification purports to have been issued by the Central
Government. Under Article 53 of the Constitution, the Executive
power of the Union shall be vested in the President and shall be
exercised by him either directly Or through officers subordinate to
him in accordance with the Constitution. According to Clause (1)
of Article 77 of the Constitution, all executive action of the
Government of India shall be expressed to be taken in the name
of the President. Under this Article, even if action is taken by the.
Central Government, the relevant order ought to be issued in the
name of the President. I do not find in the Constitution the
converse proposition. There is no provision to the effect that,
orders to be issued by the President might be issued in the name
of the Central Government. We have seen that under Clause (1)
of Article 258 of the Constitution, it is the President who can
delegate his functions to the State Government. There is nothing
in the Constitution to suggest that the Central Government may
act on behalf of the President for purposes of Article 258. It is true
that, under Article 74 of the Constitution, the President is aided by
a Council of Ministers. It was open to the Council of Ministers to
advise the President for issuing an order under Article 258 of the
Constitution. But ultimately the order had to be issued by the
29Page 30
President, or in the name of the President. In the instant case the
1952 notification was issued by the Central Government, and not
by the President. I agree with Mr. Khare that the notification dated
29-3-1952 is not a valid notification delegating powers under
Article 258 of the Constitution. The 1952 notification did not
empower the State Government to take action under the Act on
behalf of the Union Government. In the absence of any such
delegation of powers, action in the instant case ought to have
been taken by the appropriate Government (the Central
Government). It was not open to the State Government to issue
notifications under Sections 4 and 6 of the Act on behalf of the
Union Government. The two notifications dated 2-3-59 and 16-4-
59 with reference to the area of 113.78 acres are invalid. The
authorities have tried to dispossess the petitioners on the strength
of these notifications. The petitioners are entitled to be restored to
possession, in case the authorities have already dispossessed
the petitioners. Since the petition partly succeeds, the parties may
be directed to bear their own costs.
(emphasis is ours)
It was the vehement contention of the learned counsel for the
appellants, that the Allahabad High Court had interpreted the provisions
of the Acquisition Act, by appropriately referring to the relevant
provisions of the Constitution of India. Learned counsel accordingly
submitted, that the legal/constitutional inferences recorded in the cited
judgment would clearly demonstrate, that only the Central Government
had the jurisdiction, to issue the notification and declaration under
Sections 4 and 6 respectively of the Acquisition Act, in the case in hand.
(ii) Reference was also made to the paragraphs extracted below
from the decision rendered by the Bombay High Court in Ramdas
Thanu Dessai & Ors. v. State of Goa & Ors., 2009 (1) Mh.L.J. 241.
Herein also, the controversy before the High Court was similar to the
one in hand.
“5. As already seen above, once it is not in dispute that the
acquisition is for the South Western Railways for the purpose of
construction of railway line and cargo handling terminal at
30Page 31
Shelvona, and the entire acquisition cost would be borne by the
respondent Nos. 2 and 5, it obviously means that the acquisition
is for the Union and, therefore, such acquisition has to be by the
Central Government who is the appropriate Government for
initiating such action.
xxx xxx xxx
7. In our considered opinion, it is difficult to accept the
contention sought to be raised on behalf of the respondent Nos. 1
and 4. The section 4 of the said Act clearly requires the
appropriate Government to take initiative for commencement of
acquisition proceedings and section 3(ee) specifies as to who
would be the appropriate Government bearing in mind the
purpose for which the acquisition of land is contemplated. In the
case in hand, as already seen above, the acquisition of land
specified in the Schedule annexed to the notification is for the
purpose of construction of railway line and cargo handling
terminal for South Western Railway. The arguments on behalf of
the respondent Nos. 1 and 4 relates to the benefits which may
arise to the local residents out of construction of such railway line
and the terminal and not to the purpose for which the land is
sought to be acquired. The resultant benefits which the residents
of the affected area in Goa may enjoy is not the purpose for which
a particular land is sought to be acquired. If the argument on
behalf of the respondent Nos. 1 and 4 is to be accepted, then
even the land which is used for laying the railway line and which
undisputedly belong to the Union of India would fall in the
category of any other purpose. That is not the legislative intent
behind defining the term "appropriate Government" under section
3(ee).
8. The appropriate Government under section 4 read with
section 3(ee) is that Government which takes decision to acquire
the land for its purpose. In the case in hand, once it is not in
dispute that pursuant to the proposal by the State Government it
was the decision of the Union and its Department of Railways to
acquire a particular land for construction of the terminal to be
constructed and maintained by the respondent Nos. 2 and 5, it
cannot, in the same breath, be said that the acquisition is also for
any other purpose. The purpose of acquisition is clearly specified
in the notification. Once a particular purpose is specified in the
said notification, it cannot be sought to be stated by way of an
affidavit that the real purpose is something different from the one
disclosed in the notification nor such additional benefits which
may accrue on account of acquisition of land to the residents of
the locality could be said to be the purpose for which the land is
sought to be acquired.
31Page 32
9. It is to be borne in mind that after issuance of notification
under section 4, the interested parties are entitled to object to
such notification and in that regard the Collector is enjoined to
hear the objections and make a report to the appropriate
Government and after considering such reports, the appropriate
Government is required to take appropriate decision which should
culminate in the form of declaration under section 6. The sections
4, 5, 5A and 6 specifically refers to the appropriate Government
and its satisfaction for need to acquire the land. Once it is not in
dispute that the proposed acquisition of land is for the purpose of
railway terminal, to be built by the respondent Nos. 2 and 5 at
their own cost and to be maintained by them, and such terminal is
to be used for the activities in relation to the railways i.e., for
unloading of ore transported by the railways from Kamataka to
Goa, it cannot be said that the land is sought to be acquired for
any other purpose. It is to be held that the land is being sought to
be acquired for the Union purpose.
10. In spite of the fact that the land is sought to be acquired for
the Union, it is undisputed fact that the State Government claims
to be the appropriate Government in respect of the acquisition
proceedings in question. Obviously, it is without any authority to
be the appropriate Government for the purpose of such
acquisition. Therefore, the notification and the declaration are to
be held as bad in law.
xxx xxx xxx
12. When the statutory provisions comprised under sections 4
and 6 read with section 3(ee) of the said Act clearly provide that
in cases of acquisition for the purpose of Union, the appropriate
Government would be the Central Government, the exercise of
executive power cannot be allowed to transgress the said
statutory provisions comprised under the said Act. The petitioners
are justified in contending that the executive power is always
subservient to the legislative power. It is always subject to
legislative provision and has to yield to the legislative power.
Mere inclusion of the Entry No. 42 in the concurrent list, which
speaks of the principles on which compensation for the property
acquired and requisitioned for the purpose of the Union and the
State or for any other public purpose is to be determined and the
form and the manner in which such compensation is to be given,
by that itself would not empower the executive to act in
contravention of the provisions made in the Central Legislation. It
cannot be disputed that the said Act was enacted prior to the
independence of India. However, the same was adapted in terms
of the Adaptation Order of 1950 and, therefore, is a law made by
the Parliament within the meaning of the said expression under
the proviso to Article 162 of the Constitution of India.
32Page 33
xxx xxx xxx
18. It is thus clear that in spite of the fact that the acquisition of
the land is for the Union's purpose and at the cost of the Central
Government, the process of acquisition was sought to be initiated
by publication of notification under section 4 of the said Act by the
State Government claiming to be the appropriate Government. As
the law stands, the acquisition for the Union's purpose cannot be
initiated by the State Government unless there is specific
delegation of power in that regard and in the case in hand there
has been no such delegation. Hence, as rightly submitted on
behalf of the petitioners, the notification under section 4 and the
declaration under section 6 in relation to the land in question by
the State Government is bad in law and is liable to be struck
down.”
(emphasis is ours)
It was submitted by learned counsel for the appellants, that the issue
has been correctly adjudicated even by the Bombay High Court, and
that, this Court should endorse the same, while adjudicating the present
controversy.
(iii) Reliance was also placed on Messrs. Tinsukia Development
Corporation Ltd. v. State of Assam & Anr., AIR 1961 Assam 133,
wherein a Full Bench of the Assam High Court held as under :
“3. The submission made on behalf of the petitioner is that as
the land was needed for construction of the food-grains godown
by the Government of India the purpose was a Union purpose
and the Central Government was the appropriate Government. It
is not disputed that the two notifications under Sections 4 and 6
were issued on behalf of the State Government. From a perusal
of the notification under Section 6 it is also clear that it was the
State Government which was satisfied that the land was needed
for a public purpose before issuing a declaration under Section 6.
4. The contention on behalf of the State is two-fold in reply to
the argument of the counsel for the petitioner. Firstly it is urged
that merely because the land is needed for construction of a foodgrains godown by the Central Government, it does not
necessarily follow that the purpose is a Union purpose. The
maintenance of proper supply of food-grains to the inhabitants of
this State is as much the responsibility of the State Government
33Page 34
as that of the Central Government. The benefit by the
construction of the food-grains godown will be derived by the
public of this State and as such it is a public purpose and not a
purpose of the Union alone.”
It would be relevant to mention, that the submission advanced on behalf
of the acquiring Government, was akin to the “third alternative”
expressed by the Constitution Bench of this Court in State of Bombay
vs. Ali Gulshan (supra).
(iv) Reliance was also placed by the learned counsel for the
appellants, on Sudhansu Sekhar Maity & Ors. vs. State of West Bengal
& Ors., AIR 1972 Calcutta 320, and our attention was drawn to the
following:-
“9. In dealing with this point it should first be noted that after
the seventh amendment to the Constitution both entries 33 & 36
respectively of the Union list and the State list have now been
deleted and entry 42 of the concurrent List has been appropriately
amended to cover "acquisition and requisitioning of property". On
this amendment acquisition is on the concurrent list and both the
Union and the State are equally authorised to legislate on the
subject of acquisition irrespective of purpose of such acquisition
but subject to the usual limitations otherwise imposed by the
Constitution. Thus acquisition irrespective of whether it is for the
purpose of the State or the Union being within the legislative
competence of the State is also within its executive powers.
According to Baneriee. J. in the case of Gadadhar v. State of
West Bengal, (1963) 67 Cal WN 460 at p. 470, after such
amendment it is wholly inconsequential as to whether the
acquisition is made for a purpose of the Union or the State. To
quote his words:
"the disclosure that acquisition of land was being made for
a purpose which was not the purpose of the Union, in the
notification and the declaration, was possibly made under
the time worn idea that since the State could legislate in the
matter of land acquisition, for its own purpose only, every
land acquisition by the State must be justified on that
ground. After the Constitution Seventh Amendment Act,
1956 it was not necessary to make such a statement in the
notification or the declaration, even if it was at all so
necessary at a time when the Constitution had not been so
amended".
34Page 35
This statement of the principle by Banerjee, J. can be well
supported so long -- as is usually the case -- the State
Governments are duly authorised on delegation of powers by the
Union Government to acquire lands for a purpose of the Union.
Because in the absence of such delegated authority on the
statutory provisions of Sections 4 and 6 of the said Act read with
the definition of the term 'appropriate Government' in Section
3(ee). the power of acquisition would otherwise be limited to the
State Or the Union Government respectively for purposes of the
State or the Union.
10. Now in the present case it appears from the affidavit filed
by the respondents Nos. 1 to 4 that by an appropriate notification
dated May 14, 1955 issued under Article 258(1) of the
Constitution the State Government in West Bengal was duly
authorised by the Central Government to acquire land for the
purposes of the Union. This factum of delegation is not disputed.
If that is so, even if I assume that the purpose of the disputed
acquisition is a purpose of the Union it would still be within the
powers of the State Government to acquire and the acquisition
cannot be struck down as beyond the competence of the State
Government. Mr. Sinha, however, contends that in the present
case neither the notifications under Section 4 nor the declarations
under Section 6 invoke the delegated powers nor are the
notifications and declarations issued in appropriate forms. In my
view even if that be so, that would not vitiate the notifications or
declarations. It would be a mere irregularity not affecting the
substance which would not vitiate the acquisition. If the authority
has the power for any action taken, the act is competent and non
recital or wrong recital of the authority for the action would not
make the act incompetent or without jurisdiction. Reference may
be made to the decision of the Supreme Court in the case of
Lekhraj v. Dy. Custodian, Bombay, AIR 1966 SC 334.
11. That apart, in my view there is great substance in the
contention of Mr. Bose that simply because the acquisition is for
the purpose of setting up a subsidiary port, the purpose of the
acquisition does not necessarily become solely a purpose of the
Union. According to Mr. Bose it is a project which would not only
be highly beneficial to the general public in this State but would
serve public purposes in this State and as such the acquisition
would be well supported on the ground that it is for a public
purpose. It is clearly so when the acquisition is being made at the
expense of the local authority. Mr. Bose rightly relies on the
decision of the Supreme Court in the case of State of Bombay v.
Ali Gulshan, AIR 1955 SC 810, in contending that there is no
merit in the contention that merely because the purpose involves
establishment of a port it serves no public purpose other than a
purpose of the Union. In my view the following observations of the
Supreme Court are clearly instructive, "that there is another way
35Page 36
of looking at the question involved. An undertaking may have
three different facets or aspects, and may serve the purpose of a
State, the purpose of the Union and a general public purpose.
Even if one may regard the requisition of a room for the
accommodation of a member of a consulate as one appertaining
to a Union purpose, it does not necessarily cease to be a State
purpose or a general public purpose". Similar also was the view
taken by this Court in the case of (1963) 67 Cal WN 460 (supra).
Therefore, following the above view I must hold that when
establishment of a subsidiary port or a dock therein would
undoubtedly serve at least the general public purpose even if it
otherwise involves a purpose of the Union, it would not be beyond
the authority of the State Government to acquire lands in exercise
of its own powers and irrespective of the powers delegated by the
Union Government in this respect. In either view therefore this
objection of Mr. Sinha must be overruled.”
(emphasis is ours)
According to the learned counsel for the appellants, in the case in hand,
the purpose of acquisition was purely relatable to the Railways. And
the Railways being exclusively a Union subject (falling under entry 22 in
list I, of the Seventh Schedule), the process of acquisition must be
deemed to fall in the exclusive executive domain of the Union
Government.
26. The second contention advanced at the hands of the learned
counsel for the appellants was based on the constitutional right
available to the appellants, under Article 300A of the Constitution of
India (hereinafter referred to as the ‘Constitution’). Article 300A is being
extracted hereunder:-
“300A. Persons not to be deprived of property save by
authority of law – No person shall be deprived of his property
save by authority of law.”
Based on the aforesaid constitutional provision, it was emphatically
asserted on behalf of the appellants, that an individual could not be
36Page 37
deprived of his property except in accordance with law. It was
submitted, that even if the lands of the appellants were to be acquired
for a public purpose, the same could have been done only by following
the procedure established by law. In the absence of following the
prescribed procedure, the acquisition itself must be deemed to have
been made in violation of the constitutional rights vested in the
appellants under Article 300A of the Constitution.
27. In order to support the contention advanced at the hands of the
appellants (expressed in the foregoing paragraph), learned counsel for
the appellants placed reliance on a number of judgments rendered by
this Court. The same are being individually referred to below.
(i) First of all, reliance was placed on the decision rendered by this
Court in State of U.P. & Ors. vs. Manohar, (2005) 2 SCC 126. The
following observations recorded therein were highlighted, during the
course of hearing:-
“6. Having heard the learned counsel for the appellants, we
are satisfied that the case projected before the Court by the
appellants is utterly untenable and not worthy of emanating from
any State which professes the least regard to being a welfare
State. When we pointed out to the learned counsel that at this
stage at least, the State should be gracious enough to accept its
mistake and promptly pay the compensation to the respondent,
the State has taken an intractable attitude and persisted in
opposing what appears to be a just and reasonable claim of the
respondent.
7. Ours is a constitutional democracy and the rights available
to the citizens are declared by the Constitution. Although Article
19(1)(f) was deleted by the Forty-fourth Amendment to the
Constitution, Article 300A has been placed in the Constitution,
which reads as follows:
37Page 38
"300A. Persons not to be deprived of property save by
authority of law - No person shall be deprived of his
property save by authority of law."
8. This is a case where we find utter lack of legal authority for
deprivation of the respondent's property by the appellants who
are State authorities. In our view, this case was an eminently fit
one for exercising the writ jurisdiction of the High Court under
Article 226 of the Constitution. In our view, the High Court was
somewhat liberal in not imposing exemplary costs on the
appellants. We would have perhaps followed suit, but for the
intransigence displayed before us.”
(ii) Reliance was then placed on the decision rendered by this Court
in Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chennai &
Ors., (2005) 7 SCC 627. In order to expound the nature of rights vested
in the appellants under Article 300A of the Constitution, reliance was
placed on the following observations recorded therein :
“6. It is not in dispute that Section 5-A of the Act confers a
valuable right in favour of a person whose lands are sought to be
acquired. Having regard to the provisions contained in Article
300A of the Constitution of India, the State in exercise of its
power of “eminent domain” may interfere with the right of property
of a person by acquiring the same but the same must be for a
public purpose and reasonable compensation therefor must be
paid.
7. Indisputably, the definition of public purpose is of wide
amplitude and takes within its sweep the acquisition of land for a
corporation owned or controlled by the State, as envisaged under
sub-clause (iv) of Clause (f) of Section 3 of the Act. But the same
would not mean that the State is the sole judge therefore and no
judicial review shall lie. (See Jilubhai Nanbhai Khachar and vs.
State of Gujarat, 1995 Supp (1) SCC 596).
8. The conclusiveness contained in Section 6 of the Act
indisputably is attached to a need as also the purpose and in this
regard ordinarily, the jurisdiction of the court is limited but it is
equally true that when an opportunity of being heard has
expressly been conferred by a statute, the same must
scrupulously be complied with. For the said purpose, Sections 4,
5-A and 6 of the Act must be read conjointly. The court in a case,
where there has been total non-compliance or substantial noncompliance of the provisions of Section 5-A of the Act cannot fold
its hands and refuse to grant a relief to the writ petitioner. Sub-
38Page 39
section (3) of Section 6 of the Act renders a declaration to be a
conclusive evidence. But when the decision making process itself
is in question, the power of judicial review can he exercised by
the court in the event the order impugned suffers from well-known
principles, viz., illegality, irrationality and procedural impropriety.
Moreover, when a statutory authority exercises such enormous
power it must be done in a fair and reasonable manner.
9. It is trite that hearing given to a person must be an effective
one and not a mere formality. Formation of opinion as regard the
public purpose as also suitability thereof must be preceded by
application of mind as regards consideration of relevant factors
and rejection of irrelevant ones. The State in its decision making
process must not commit any misdirection in law. It is also not in
dispute that Section 5-A of the Act confers a valuable important
right and having regard to the provisions, contained in Article
300A of the Constitution of India has been held to be akin to a
fundamental right.”
(emphasis is ours)
(iii) In addition to the aforesaid, learned counsel for the appellants
placed reliance on Lachhman Dass vs. Jagat Ram & Ors., (2007) 10
SCC 448, and invited our attention to the following observations made
therein:-
“16. Despite such notice, the appellant was not impleaded as a
party. His right, therefore, to own and possess the suit land could
not have been taken away without giving him an opportunity of
hearing in a matter of this nature. To hold property is a
constitutional right in terms of Article 300A of the Constitution of
India. It is also a human right. Right to hold property, therefore,
cannot be taken away except in accordance with the provisions of
a statute. If a superior right to hold a property is claimed, the
procedures therefore must be complied with. The conditions
precedent therefore must be satisfied. Even otherwise, the right of
pre-emption is a very weak right, although it is a statutory right.
The Court, while granting a relief in favour of a pre-emptor, must
bear it in mind about the character of the right, vis-a-vis, the
constitutional and human right of the owner thereof.”
(emphasis is ours)
(iv) Finally learned counsel for the appellants, in order to contend,
that the acquisition made by the Government of Rajasthan, in the case
in hand, was not in conformity with the procedure prescribed by law,
39Page 40
placed reliance on Entertainment Network (India) Ltd. vs. Super
Cassette Industries Ltd. etc. etc., (2008) 13 SCC 30. From the instant
judgment, learned counsel placed reliance on the following
observations:-
“118. An owner of a copyright indisputably has a right akin to the
right of property. It is also a human right. Now, human rights have
started gaining a multifaceted approach. Property rights vis-a-vis
individuals are also incorporated within the “multiversity” of
human rights. As, for example, any claim of adverse possession
has to be read in consonance with human rights. The activist
approach of the European Court of Human Rights is quite visible
from the judgment of Beaulane Properties Ltd. vs. Palmer, 2005
EWHC 817(Ch.), and J.A. Pye (Oxford) Ltd. vs. Graham, (2002) 3
ALL ER 865.
119. This Court recognized need of incorporating the same
principle for invoking the rule of strict construction in such matters
in P.T. Munichikkanna Reddy vs. Revamma, AIR 2007 SC 1753,
stating:
Adverse possession is a right which comes into play not
just because someone loses his right to reclaim the
property out of continuous and wilful neglect but also on
account of possessor's positive intent to dispossess.
Intention to possess can not be substituted for intention to
dispossess. Mere possession for howsoever length of time
does not result in converting the permissible possession
into adverse possession.
120. Further, in Peter Smith vs. Kvaerner Cementation
Foundations Ltd., [2006] EWCA Civ 242, the Court allowed the
appellant to reopen the case despite a delay of four years as he
had been denied the right to which Article 6 of the European
Convention on Human Rights ("the Convention") entitled him - to
a fair hearing before an independent and impartial tribunal.
121. But the right of property is no longer a fundamental right. It
will be subject to reasonable restrictions. In terms of Article 300A
of the Constitution, it may be subject to the conditions laid down
therein, namely, it may be wholly or in part acquired in public
interest and on payment of reasonable compensation.”
(emphasis is ours)
40Page 41
Based on the judgments cited above, it was asserted by learned
counsel representing the appellants, that in the facts of this case, it
stood established, that even though the prescribed procedure, vested
the authority of acquisition, with the Union Government, it had
unauthorizedly been acquired by the State Government (of Rajasthan).
28. Viewed dispassionately, we are satisfied, that even the second
submission advanced by the learned counsel for the appellants, has
trappings of the first contention. To succeed on the basis of the second
contention, it is critical for the appellants to succeed on the first.
Therefore, if the appellants succeed to establish, that acquisition in the
present case, could only have been made by the Union Government,
they would simultaneously be able to establish, that they had been
deprived of their property in violation of Article 300A of the Constitution,
i.e., without following the procedure established by law.
29. The third contention advanced at the hands of the appellants was
based on Article 73 of the Constitution. It was submitted, that since
“Railways” is a union subject (referable to entry 22 in list I, of the
Seventh Schedule), only the Union Government, i.e., the Government of
India had executive powers to acquire the land for establishing a zonal
office complex and residential quarters for Railway staff for the North
Western Railway zone, at Jaipur, in the State of Rajasthan. Article 73 of
the Constitution is being extracted hereunder:-
“73. Extent of executive power of the Union - (1) Subject to the
provisions of this Constitution, the executive power of the Union
shall extend-
41Page 42
(a) To the matters with respect to which Parliament has
power to make laws; and
(b) To the exercise of such rights, authority and jurisdiction
as are exercisable by the Government of India by virtue of
any treaty or agreement:
Provided that the executive power referred to in sub-clause
(a) shall not, save as expressly provided in this Constitution
or in any law made by Parliament, extend in any State to
matters with respect to which the Legislature of the State
has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer
or authority of a State may, notwithstanding anything in this
article, continue to exercise in matters with respect to which
Parliament has power to make laws for that State such executive
power or functions as the State or officer or authority thereof
could exercise immediately before the commencement of this
Constitution.”
Based on Article 73 of the Constitution, it was the contention of the
learned counsel for the appellants, that “Railways” is a Union subject
(referable to entry 22 in list I, of the Seventh Schedule). It was
accordingly contended, that Parliament has the exclusive power to
make laws relatable to matters pertaining to the “Railways”. As such,
relying on Article 73, it was submitted, that only the Union Government
(the Government of India) could exercise executive power in matters
pertaining to the subject “Railways”. Having made a reference to the
notification dated 19.8.1997 (issued under Section 4 of the Acquisition
Act), and the declaration dated 13.1.1999 (issued under Section 6 of the
Acquisition Act) it was pointed out, that the land under reference was
acquired “… in the public interest for the purpose of Zonal office, North
Western Railway by Central Government (Railways Administration)…”.
It was accordingly submitted, that the matter under reference was
relatable to a subject with respect to which, only the Parliament had
42Page 43
power to make laws. Therefore, the executive power relatable to the
acquisition under reference, under the mandate of Article 73 of the
Constitution, could only have been exercised by the Central
Government. In this behalf it was sought to be emphasized, that all the
executive power in the instant process of acquisition, was exercised by
the Government of Rajasthan. It was accordingly submitted, that all the
orders issued by the State Government, including the notification dated
19.8.1997 and the declaration dated 13.1.1999, were without
jurisdiction, and as such, void being ultra vires of Article 73 of the
Constitution of India.
30. It was also pointed out by the learned counsel for the appellants,
that it is open to the President of India to delegate executive functions
vested in the Central Government to the State Government. In this
behalf, learned counsel for the appellants placed reliance on Article 258
of the Constitution. Article 258 of the Constitution, is being extracted
hereunder :
“258. Power of the Union to confer powers, etc, on States in
certain cases—(1) Notwithstanding anything in this Constitution,
the President may, with the consent of the Governor of a State,
entrust either conditionally or unconditionally to that Government
or to its officers functions in relation to any matter to which the
executive power of the Union extends
(2) A law made by Parliament which applies in any State may,
notwithstanding that it relates to a matter with respect to which
the Legislature of the State has no power to make laws, confer
powers and impose duties, or authorise the conferring of powers
and the imposition of duties, upon the State or officers and
authorities thereof
(3) Where by virtue of this article powers and duties have been
conferred or imposed upon a State or officers or authorities
thereof, there shall be paid by the Government of India to the
43Page 44
State such sum as may be agreed, or, in default of agreement, as
may be determined by an arbitrator appointed by the Chief
Justice of India, in respect of any extra costs of administration
incurred by the State in connection with the exercise of those
powers and duties.”
Based on Article 258 of the Constitution, it was the submission of the
learned counsel for the appellants, that the President of India in the
facts and circumstances of the instant case, cannot be stated to have
ever delegated the aforesaid executive functions of the Union, to the
Government of Rajasthan. The simple submission was, that no such
stance had been adopted either by the Union, or by the acquiring State
Government. Insofar as the instant aspect of the matter is concerned,
learned counsel for the appellants, placed reliance on Section 3(8)(b) of
the General Clauses Act, 1897. Section 3(8)(b) aforementioned is
extracted hereunder :
“3. Definitions.— In this Act, and in all Central Acts and
Regulations made after the commencement of this Act, unless
there is anything repugnant in the subject or context,-
(1) to (7) ...
(8) "Central Government" shall,--
(a) ...
(b) in relation to anything done or to be done after the
commencement of the Constitution, mean the President; and
shall include,--
(i) in relation to functions entrusted under clause (1) of
article 258 of the Constitution, to the Government of a
State, the State Government acting within the scope of the
authority given to it under that clause;
(ii) in relation to the administration of a Part C State before
the commencement of the Constitution (Seventh
Amendment) Act, 1956, the Chief Commissioner or the
Lieutenant-Governor or the Government of a neighbouring
44Page 45
State or other authority acting within the scope of the
authority given to him or it under article 239 or article 243 of
the Constitution, as the case may be; and
(iii) in relation to the administration of a Union territory, the
administrator thereof acting within the scope of the
authority given to him under article 239 of the Constitution.”
It was the submission of the learned counsel for the appellants, that the
onus rested on the Railways, and alternatively on the Government of
Rajasthan, to establish that the delegation of power for acquiring the
land under reference had actually been ordered by the President of
India. It was the submission of the learned counsel for the appellants,
that since no such delegation is shown to have been made by the
President of India, to the functionaries of the Government of Rajasthan,
it was natural to infer, that no such delegation was ever ordered. Since
as submitted by learned counsel, the instant executive function was
solely vested in the Central Government, therefore, it could not have
been executed on behalf of the Central Government by the Government
of Rajasthan. In the instant view of the matter, it was submitted, that the
concerned acquisition, by the State Government, was without any
authority/sanction of law.
31. In our considered view, even the third submission advanced by
the learned counsel for the appellants raises the same foundational
plea, as the first two contentions. In order to succeed on the third
contention it would be vital (as for the earlier two contentions) for the
appellants to establish, that the process of acquisition in this case, could
only have been carried out by the Union executive (i.e., the Government
of India), whereas, it had unauthorizedly been undertaken by the State
45Page 46
Government (i.e., the Government of Rajasthan). In view of the first
three submissions, therefore, we shall first of all endeavour to
determine, whether the instant acquisition of land, accomplished by the
State Government, is sustainable in law.
32. Having given our thoughtful consideration to the matter under
consideration, we are of the view, that reliance on entry 33 (of list I of
the Seventh Schedule), and on entry 36 (of list II of the Seventh
Schedule), and finally on entry 42 (of list III of the Seventh Schedule), is
only for the purpose of avoiding and getting around, the real issue.
Entries in list I, bring the listed subjects within the legislative
competence of the Parliament. Entries in list II demarcate subjects
falling within the legislative competence of the State Legislatures.
Entries in list III pertain to subjects on which joint legislative competence
is vested with the Parliament, as also, the State Legislatures. Needless
to mention, that the Constitution vests superiority in enactments made
by the Parliament, on subjects enumerated in list III, of the Seventh
Schedule (in case of conflict between the legislations enacted by the
Parliament and the State Legislatures). Statutory provisions enacted in
the manner expressed above, regulate, not only the substance of the
legislation, but also modulate the procedure to administer the substance
of the legislation.
33. Article 73 of the Constitution vests in the Central Government
executive power, the jurisdiction whereof is exactly the same as
jurisdiction vested in the Parliament to make laws. The executive power
46Page 47
of the Union, therefore, extends over the subjects on which the
Parliament has the power to legislate. Arising out of the executive
power referred to hereinabove, emerges one fundamental and
unambiguous understanding, namely, executive power vested in the
Central Government cannot be exercised in violation of the
constitutional provisions referred to above, or as may be ordained by
some express legislative enactment. The latter aspect (express
legislative enactment), emerges from the proviso under Article 73(1) of
the Constitution of India. Therefore, on a subject regulated by
legislation, executive power has to be exercised in consonance with the
enacted legislation.
34. It is in the background of the conclusions recorded in the
aforegoing two paragraphs, that we must understand the scope of
executive authority vested in the Central Government under Article 73 of
the Constitution. There is no dispute whatsoever, that the subject
matter under consideration is regulated by the Acquisition Act. As such,
the freedom of executive power vested in the Central Government must
be deemed to have been curtailed, so as to be exercised in consonance
with the provisions of the Acquisition Act. The preceding proposition is
the natural consequence of giving effect to the proviso under Article
73(1) of the Constitution of India. Since the vires of the provisions of the
Acquisition Act relied upon by the learned counsel for the appellants
have not been assailed, we are inclined to unhesitatingly hold that the
procedure contemplated under the Acquisition Act, is liable to be
followed in matters pertaining to governmental acquisitions, of private
47Page 48
land. In absence of compliance therewith, the process of acquisition
made thereunder, would be liable to be set aside. We are of the view,
that Sections 4 and 6 lay down mandatory procedural provisions, which
require to be followed in letter and spirit, in matters pertaining to
acquisition of private lands.
35. For the reasons recorded in the foregoing paragraphs, we are of
the view, that reliance on different entries in different lists of the Seventh
Schedule, at the behest of the learned counsel for the appellants, may
turn out to be wholly inconsequential, in so far as the present
controversy is concerned. It needs emphasis, that entries in different
lists, have been relied upon only to demarcate the executive domain.
To impress upon us, that the jurisdiction to acquire land in the facts of
the present case, fell within the exclusive domain of the Central
Government, in a very subtle manner, the submission has clearly
changed over to a wrong track. Herein the substance of law, as also,
the procedure regulating acquisition, flows out of the Acquisition Act.
The vires of the Acquisition Act is not under challenge. Therefore, the
Acquisition Act, which demarcates the jurisdictional areas between the
Union and the States will provide an answer to the issue of jurisdiction
canvassed, and not the entries in different lists of the Seventh Schedule
of the Constitution of India. More so, because the subject of acquisition
is now placed in list III of the Seventh Schedule of the Constitution of
India (in entry 42), and as such, the Parliament as also the State
Legislatures, have concurrent jurisdiction in respect thereof. As such, it
would be fully justified for Parliament (as it has done through the
48Page 49
Acquisition Act), to demonstrate the areas of jurisdiction. All the same,
we shall endeavour to record the submissions advanced on behalf of
the appellants.
36. While bringing to our notice entry 33 in list I, entry 36 in list II and
entry 42 in list III of the Seventh Schedule of the Constitution, it was
vehemently pointed out, by learned counsel for the appellants, that the
first two of the aforesaid entries came to be omitted by the Constitution
(Seventh Amendment) Act, 1956. Simultaneously, by the same
amendment, entry 42 was added to List III of the Seventh Schedule.
Learned counsel for the appellants therefore submitted, that the earlier
entry 33 of list I and entry 36 of list II of the Seventh Schedule must be
deemed to have been merged into entry 42 of list III of the Seventh
Schedule. It was accordingly the vehement contention of the learned
counsel for the appellants, that while determining legislative
competence (and the resultant executive jurisdiction) consequent upon
the merger of the aforesaid two entries into the freshly
amended/substituted entry 42 of list III, it was imperative to keep in mind
what the Parliament did away with, and the resultant effect emerging
from a collective interpretation of the above three entries, prior to the
Constitution (Seventh Amendment) Act, 1956. For the instant reason, it
was also sought to be suggested, that the judgment rendered by this
Court in State of Bombay v. Ali Gulshan (supra) would not constitute a
valid basis for determination of the present controversy. Learned
counsel, in this behalf also pointed out, that the judgment in the
49Page 50
aforesaid matter was rendered in 1955, i.e. before the Constitutional
Amendment in 1956.
37. We shall now endeavour to determine the effect of the
submissions advanced at the hands of the learned counsel. Through
entry 33 (in list I of the Seventh Schedule), the subject of acquisition of
property “... for the purposes of the Union...” was vested in the
legislative domain of the Parliament. And through entry 36 (in list II of
the Seventh Schedule), the subject of acquisition of property “... except
for the purposes of the Union...” was vested in the State Legislatures.
Having done away with the aforesaid entries from Lists I and II of the
Seventh Schedule, by the Constitution (Seventh Amendment) Act, 1956
(with effect from 1.11.1956), the legislative competence on the subject
of acquisition was jointly vested in the Parliament, as well as, the State
Legislature through entry 42 (in list III of the Seventh Schedule). Within
the scope of entry 42 (in list III of the Seventh Schedule), it was open to
the Parliament, as also, the State Legislature to enact legislation on the
subject of acquisition. It is, therefore apparent that the exclusive
jurisdiction vested in the State Legislature to enact legislation on the
subject of acquisition “...except for the purposes of the Union...” was
clearly taken away from the exclusive jurisdiction of the State legislation
by the aforestated amendment to the Constitution. In other words, prior
to the above amendment, State Legislature had the exclusive
jurisdiction to enact law for acquisition of private lands, falling within the
territorial jurisdiction of the concerned State. The said jurisdiction was
now concurrently shared with the Parliament. The said jurisdiction was
50Page 51
invoked by the Parliament when it enacted the Acquisition Act.
Therefore, in the ultimate analysis the submission advanced by the
learned counsel, would not serve the purpose of the appellants herein,
inasmuch as, it is not possible for us to read into entry 42 of list III of the
Seventh Schedule, the cumulative effect of entries 31 and 36 (of lists I
and II respectively of the Seventh Schedule). Hithertobefore, the
jurisdiction of Parliament (and consequently of the Union executive),
would extend only to acquisition of land/properties for purposes of the
Union. We are satisfied to hold, that consequent upon the Constitution
(Seventh Amendment) Act, 1956, the jurisdictional limitations on the
subject of acquisition would emerge from a valid legislation made under
entry 42 (in list III of the Seventh Schedule). Since the validity of the
Acquisition Act has not been assailed by the appellants, we shall accept
the same to be a valid legislation enacted under entry 42 (in list III of the
Seventh Schedule). We must, therefore, now endeavour to determine
the legitimacy of the submissions advanced at the hands of the learned
counsel for the appellants, on the jurisdictional question, purely on the
basis of the Acquisition Act.
38. In order to determine the validity of the submission advanced at
the hands of the learned counsel for the appellants, namely, that the
acquisition in the facts and circumstances of the present case, could
have been made only by the Central Government, and consequently,
the acquisition made by the Government of Rajasthan, was totally
without jurisdiction, would depend on the interpretation of Sections 4
and 6 of the Acquisition Act (read along with other provisions of the
51Page 52
Acquisition Act, relied upon by the learned counsel for the parties). In
this behalf, the submissions advanced on behalf of the appellants, have
already been recorded in paragraph 21 above.
39. From the deliberations recorded above, there is no room for any
dispute, that the interpretation of the term “appropriate Government”
referred to in Sections 4 and 6 of the Acquisition Act would lead to the
correct determination of the executive Government competent to
acquire the land under reference. Indubitably, the answer to the issue
would emerge from the definition of the term ‘appropriate Government’
in Section 3(ee) of the Acquisition Act, wherein, the expression
‘appropriate Government’ has been linked to the purpose of acquisition.
In such a contingency, the answer to the query, as to which of the two
Governments (Central Government, or the concerned State
Government) would satisfy the test of “appropriate Government”, one
will necessarily have to carefully view the real effect of the words
engaged to define the said term in Section 3(ee) of the Acquisition Act.
Section 3(ee) aforementioned is being extracted hereunder:
“3(ee) the expression "appropriate Government" means in relation
to acquisition of land for the purposes of the Union, the Central
Government, and, in relation to acquisition of land for any other
purposes, the State Government;”
A perusal of Section 3(ee) of the Acquisition Act, leaves no room for any
doubt, that the authority to acquire land has been divided between the
Central executive and the State executive. In situations where an
acquisition is entirely “…for the purposes of the Union…”. Section 3(ee)
aforementioned clearly postulates, that the Union executive would have
52Page 53
the exclusive jurisdiction to acquire the land. The terminology engaged
in Section 3(ee) of the Acquisition Act, for expressing the area of
jurisdiction of the State executive (in the matter of acquisition of land), is
not analogous or comparable with that engaged while spelling out the
jurisdiction of the Union executive. Section 3(ee), it may be noted, does
not express, that in matters of acquisition which are entirely for
purposes of a State, the jurisdiction would vest with the concerned State
executive. Noticeably, the words engaged to express the jurisdiction of
the State executive, are extremely wide, so as to accommodate all
acquisitions which are not entirely “for purposes of the Union”. This
intention of the legislature has been recorded by using the words “…in
relation to acquisition of land for any other purposes…” (i.e., other than
“… for the purpose of the Union…”), “…the State Government”.
40. Having had the benefit of understanding the different purposes for
which land may be acquired, from the Constitution Bench judgment of
this Court in State of Bombay vs. Ali Gulshan (supra), we would
unhesitatingly conclude, that the contemplated purposes would
definitely be “…three in number, namely, Union purpose, State purpose,
and “…a general public purpose…”. Our instant determination is based
on the fact, that an acquisition may not be exclusively for purposes
relatable to the Union, or entirely for purposes relatable to a State. The
complex and multifarious public activities which the executive has to
cater to may not fall in the exclusive domain of either the Union or the
State. In our view, causes with duality of purpose, would also fall in the
realm of the third purpose expressed by the Constitution Bench referred
53Page 54
to above as “…a general public purpose …”. Whenever the exclusive
Union or State barrier is transgressed, the purpose could be described
(as in State of Bombay vs. Ali Gulshan (supra)) as “…a general public
purpose…”. In case of the first contemplated purpose referred to
above, the Union executive would have the absolute and
unencumbered jurisdiction, as per the definition of the expression
“appropriate Government” in Section 3(ee) of the Acquisition Act. For
the remaining two purposes, the State executive would have
jurisdiction. Therefore, to determine the issue of jurisdiction in the
instant case, the first step essentially would be to determine the precise
purpose for which the instant acquisition was made. Based on such
conclusion, it would be easy to determine the vesting of executive
jurisdiction, for acquisition of the land under reference.
41. The instant issue can be examined from another perspective as
well. When examined closely, Section 3(ee) of the Acquisition Act, in
fact and in substance, incorporates the erstwhile entries 33 and 36
(from Lists I and II respectively, of the Seventh Schedule). For, it may
be recalled, that entry 33 (in List I of the Seventh Schedule), had vested
the subject of acquisition of property “... for the purposes of the Union...”
in the Parliament. Therefore, the executive domain thereof fell in the
realm of the Union/Central Government. Exactly in the same manner,
under Section 2(ee) of the Acquisition Act, for situations where
acquisition is exclusively “… for the purposes of the Union…” the Union
executive has been vested with absolute jurisdiction to acquire the land.
Likewise, jurisdiction for acquisition of land was vested in the State
54Page 55
legislature vide entry 36 (in List II of the Seventh Schedule). The
authority of the concerned State legislature extended to acquisitions of
land other than “... for the purposes of the Union...”. Therefore, the
executive domain of all acquisitions other than those for purposes of the
Union, fell in the realm of the concerned State Government. In exactly
the same manner Section 3(ee) of the Acquisition Act, for all the
residuary acquisitions, i.e. situations other than exclusively “…for the
purpose of the Union…”, have been vested in the realm of the
concerned State Government. This is exactly the same position which
was contemplated by the erstwhile entries 33 and 36 (from Lists I and II
respectively, of the Seventh Schedule). The scope and effect of the
erstwhile entries 33 and 36 was determined by a Constitution Bench of
this Court in State of Bombay vs. Ali Gulshan (supra), wherein this
Court concluded that the acquisition may serve three purposes i.e., the
purpose of the Union, the purpose of a State, and thirdly, “…a general
public purpose...”. Therefore, the logic, the course of thought, the
conclusions and the deductions made in the Constitution Bench
judgment aforementioned would completely and unqualifiedly be
applicable, while interpreting Section 3(ee) of the Acquisition Act. This
is for the simple reason, that the cause and effect of the aforesaid
entries (33 of List I, and 36 of List II) have been juxtaposed into the
definition of the term “appropriate Government” in Section 3(ee) of the
Acquisition Act. Therefore, it is only for the first of the three purposes
referred to hereinabove, wherein the term ‘appropriate Government’
would mean the Central Government. For the other two
55Page 56
exigencies/situations, the term ‘appropriate Government’ would mean
the concerned State Government.
42. We are of the view, that the determination on the first issue
canvassed at the hands of the learned counsel, would inevitably depend
on the purpose for which the land in question came to be acquired. If
the purpose of acquisition is exclusively for the Union, then the
Union/Central Government will have the exclusive jurisdiction to acquire
the land. If the purpose of acquisition is exclusively for a State, then the
concerned State Government will have the exclusive jurisdiction to
acquire the land. And if the purpose of acquisition is, “a general public
purpose” (i.e., a purpose which is neither exclusively relatable to the
Central Government and/or fully relatable to the State Government), yet
again, the concerned State Government will have the exclusive
jurisdiction to acquire the land.
43. We have already referred to a series of communications
exchanged between the Union Government, as also, the State
Government on the subject of the land required for establishing the
zonal office complex and residential quarters for Railway staff (for the
North-Western Railway Zone), at Jaipur. From the tenor thereof, we
shall venture to determine whether the land in question was being
acquired exclusively for the purposes of the Union, or exclusively for the
purpose of the State and/or for the third purpose identified above,
namely, to serve “…a general public purpose…”. For this, we shall first
refer to the letters exchanged between the concerned parties. The first
56Page 57
available communication on the record of the case dated 15.11.1996,
was addressed by the Officer on Special Duty, North-Western Railway,
to the Commissioner, Jaipur Development Authority, Jaipur, indicating
the availability of 26 bighas of Government land in front of the Getor
Jagatpura Railway Station. Even though the aforesaid letter mentions,
that the land in question had already been allotted to the Scouts &
Guides Organization, yet it was pointed out, that the same could
effectively be put to use for setting up the required infrastructure for the
North-Western Railway Zone. It was accordingly requested, that the
said land may be transferred to the Railways, at an early date. The
aforesaid letter leaves no room for any doubt, that what was being
sought through the communication dated 15.11.1996 was the transfer of
State Government land, to the Railways. The aforesaid position came
to be reiterated in another letter dated 15.11.1996. These two
communications were then followed by a letter dated 30.12.1996,
addressed by Mr. Ram Vilas Paswan, the then Union Minister for
Railways, to Mr. Bhairon Singh Shekhawat, the then Chief Minister of
the State of Rajasthan, indicating the Union Government’s desire to set
up the North-Western Railway Zone Complex, at Jaipur. Interestingly,
in the aforesaid letter the Railway’s request to the State Government
was to provide land “free of cost”. The basis of seeking the land free of
cost, also emerges from the said letter dated 30.12.1996, wherein it was
emphasized, that setting up of the Zonal Office would improve train
services to and within the State of Rajasthan, and would meet the
expectations of public and private entities in that area. In fact, the
57Page 58
emphasis in the aforesaid letter was, that such a gesture of the State
Government (to provide land free of cost) would go a long way in
enabling the Railways to make the Zonal Office functional, at an early
date. The instant emphasis makes out, that the State of Rajasthan (on
account of transportation facilities, which would become available to
public and private entities, having a nexus to the State) would benefit
therefrom. Consequent upon the receipt of the aforesaid
communication, the Commissioner, Jaipur Development Authority,
wrote a letter dated 28.2.1997 to the Secretary, Department of
Transport, Government of Rajasthan, for initiating acquisition
proceedings in respect of the land identified in villages Bindayaka and
Todi Ramjanipura in tehsil Sanganer of district Jaipur. The Deputy
Secretary, Department of Transport, Government of Rajasthan,
responded to the same vide a letter dated 29.3.1997, addressed to the
District Collector, Jaipur, for effectuating the desire expressed.
Pursuant to the aforesaid correspondence between the Railways and
the functionaries of the Government of Rajasthan, the State
Government issued a notification dated 19.8.1997 under Section 4 of
the Acquisition Act, depicting its intention to acquire land measuring 4-
39 hectares in the revenue estate of village Bindyaka, and 9-91
hectares in village Todi Ramjanipura, tehsil Sanganer, district Jaipur, to
establish the North-Western Railway Zone Complex.
44. The correspondence between the Railways and the Government
of Rajasthan preceding the notification under Section 4 of the
Acquisition Act, is the material correspondence on the basis whereof a
58Page 59
finding will have to be recorded, on the issue in hand, one way or the
other. The desire for transfer of land belonging to the State
Government, and thereafter, the desire to furnish land consequent upon
its acquisition “free of cost” to the Railways, leaves no room for any
doubt, that the Railways desired the State of Rajasthan to contribute
land, for the proposed project. Ordinarily this would be unthinkable,
except when the project would directly or indirectly benefit the State as
well. Ordinarily, the setting up of a Zonal Office would mean better
administration for the Railways establishment. It is difficult to
understand how, for the purpose of its own administration, the Railways
could repeatedly implore the Government of Rajasthan, in the first
instance to transfer land under State ownership to the Railways, and
thereafter, make an alternative request to the Government of Rajasthan,
to acquire land and to transfer the same to the Railways free of cost.
The only reason which one can infer for such an adjuration,
ascertainable from the letters referred to above is, that the residents of
the State of Rajasthan would also benefit from the establishment of the
said Zonal Office. This issue was impressed upon by the Railways, by
asserting that better transportation facilities would become available to
the public and private entities having a nexus to the State. And
therefore, the Railways considered it appropriate to involve the State
Government’s participation in the project, in the manner indicated
above. The letter addressed by the Union Minister of Railways dated
30.12.1996 is a clear pointer to the above inference. In the said letter,
the Union Minister for Railways particularly highlighted the fact that the
59Page 60
setting up of the North-Western Railways Zone Complex would improve
train services in Rajasthan, which in turn, would benefit the State of
Rajasthan. It is, therefore, that in the first instance, transfer of
Government land was sought by the Railways. When that did not
materialize, the Government was asked to acquire land, and provide it
free of cost to the Railways. From the above deliberations, we may
record our conclusions as follows. Setting up the North-Western
Railway Zonal Complex at Jaipur, would lead to better administration for
the Railways, and in that sense it would serve the purpose of the Union.
Additionally, it would improve train services in Rajasthan and would
accordingly meet the expectations of public and private entities of the
area. This would serve the purpose of the State. We would therefore
unhesitatingly record, that the situation in hand can be described as one
wherein the public purpose is “… a general public purpose…” which is
neither exclusively relatable to the Central Government and/or fully
relatable to the State Government.
45. In State of Bombay vs. Ali Gulshan (supra) accommodation was
required, for housing a staff member of a foreign Consulate in Bombay.
In the challenge raised, the primary contention was, that the subject
under reference was a Union purpose, and accordingly, the Union
Government alone had the jurisdiction in the matter. This submission
would naturally emerge from entry 11 (in List I, of the Seventh
Schedule), which reads, “Diplomatic, Consular and trade
representation”. The Bombay High Court, while accepting the challenge
had concluded, that there were only two categories for determining the
60Page 61
executive Government which had the jurisdiction to acquire land i.e., for
a Union purpose the Union/Central Government, and for the purpose of
the State, the concerned State Government. The High Court had
interpreted the words “any other purpose” by applying the rule of
ejusdem generis, as flowing out of the purpose of the State. The
Constitution Bench of this Court while determining the controversy, did
not accept the view of the High Court. This Court held, that categories
for the purpose of acquisition were three, namely, Union purpose, State
purpose, and “…a general public purpose…”. This was sought to be
explained by observing, that a State purpose or a Union purpose would
have a nexus to the duties and obligations cast on the State or the
Union, to do particular things for the benefit of the public or a section of
the public. Naturally these obligations would be determined on the
basis of the scheme of distribution of subjects between the Union and
the States in the Seventh Schedule of the Constitution of India. The
Union purpose, would constitute the first category. The second
category would be, for fulfilling a State purpose. Besides the aforesaid
clear demarcation, constituting the first two categories, situations where
a State acquires or requisitions property to facilitate the coming into
existence of allied objects having public welfare at heart, such like
situations would fall within the third category. The third category was
described as one which contemplated “…a general public purpose…”,
i.e., where the purpose is neither exclusively relatable to the Central
Government and/or fully relatable to the State Government. In State of
Bombay vs. Ali Gulshan (supra) it came to be held, that the
61Page 62
acquisition/requisition under reference therein, fell in the third category.
The consideration and logic leading to the aforesaid determination was,
that trade and commerce is the primary cause of the State which
appoints foreign Consulate staff, to the State (in the cited case, the
State of Bombay) where he is appointed. The purpose for
acquisition/requisition, was accepted as trade and commerce. As such,
it was concluded, that the State Government had the jurisdiction to
acquire/requisition the land. In the aforesaid understanding of the
matter, it is evident that the situation in hand is one akin to the one
referred to above where the purpose of acquisition partly falls in the first
category i.e., for the benefit of the Union, and partly, falls in the third
category i.e., “…a general public purpose. Just like in State of Bombay
vs. Ali Gulshan (supra), and for exactly the same reasons, we have no
hesitation in concluding, that in the present case as well, the purpose of
acquisition would benefit the State generally, as better transportation
facilities would meet the expectations of public and private entities
having a nexus with the State of Rajasthan. The purpose of the
acquisition in hand not being an exclusive Union purpose, and further
because, the purpose for acquisition can certainly be described as “…a
general public purpose…”, the State executive would definitely have the
jurisdiction to acquire the land under reference.
46. The submission advanced on behalf of the appellants, against the
conclusion drawn above was, that the judgment rendered in State of
Bombay vs. Ali Gulshan (supra) could not be applied after the
Constitution (Seventh Amendment) Act, 1956. It was contended that,
62Page 63
the basis on which the above judgment was rendered no longer exists,
and as such, the same has lost all its relevance. We have already
examined this aspect of the matter. We have concluded that Section
2(ee) of the Acquisition Act, reintroduces the three categories under
which jurisdiction for acquiring land has to be determined. The same
three categories of public purpose, which were deduced from entries 33
and 36 (in lists I and II, respectively of the Seventh Schedule) in State of
Bombay vs. Ali Gulshan (supra), also emerge out of an analysis of
Section 2(ee) of the Acquisition Act. It is therefore not possible for us to
accept, that the Constitution Bench judgment in State of Bombay vs. Ali
Gulshan has lost its relevance. Accordingly, we find no merit in the
instant objection raised on behalf of the appellants. For the above
reason, it is not possible for us to accept the first contention advanced
at the hands of the learned counsel for the appellants. We hereby
affirm, that the State Government had the jurisdiction to acquire the land
under reference, because it duly satisfied the requirement of the term
‘appropriate Government’ referred to in Sections 4 and 6 of the
Acquisition Act.
47. The second contention advanced at the hands of the learned
counsel for the appellants was based on the Constitutional right
available to the appellants under Article 300A of the Constitution. The
contention advanced at the hands of the learned counsel for the
appellants in this behalf was, that the Government of Rajasthan had no
jurisdiction to acquire the land in question. Consequently it was
contended, that the procedure prescribed by law had not been adhered
63Page 64
to. It was asserted that the Central Government alone could have
acquired the land in question, since the same was acquired for a
purpose which falls in the domain of the Union (the Railways).
48. It was not the contention of the learned counsel for the appellants
before this Court, that there had been any other procedural lapse
besides the one indicated above. It was not the case of the appellants,
that the notifications and declaration contemplated under the provisions
of the Acquisition Act were not duly issued. It was also not the case of
the appellants, that the land losers were not afforded an opportunity to
file objections. Nor was it the case of the appellants, that the objections
were not duly considered. No lapse whatsoever had been pointed out
depicting any irregularity at the hands of the appropriate authority, either
in terms of taking possession of the acquired land, or in terms of
determination of the compensation payable. It is, therefore, apparent
that in the process of acquisition, no procedural lapse has been pointed
out. The only illegality pleaded and canvassed for the annulment of the
acquisition proceedings was, that the term ‘appropriate Government’
used in Sections 4 and 6 of the Acquisition Act was wrongly assumed,
as the Government of Rajasthan. It was submitted, that it ought to have
been the Union/Central Government. In the determination rendered by
us, in respect of the first contention canvassed on behalf of the
appellants, we have already concluded, that in the facts and
circumstances of this case, reference to the term ‘appropriate
Government’ in Sections 4 and 6 of the Acquisition Act was rightfully
relatable to the Government of Rajasthan. Based on the above
64Page 65
conclusion drawn by us, there can be no further room for the appellants
to contend, that the instant acquisition process, was not in accordance
with law. In the aforesaid view of the matter, we have no hesitation in
affirming that while acquiring the land of the appellants, the Government
of Rajasthan, has proceeded in due course of law. As such, the
appellants cannot be stated to have been deprived of their
lands/property, without the authority of law. Accordingly, it is not
possible for us to accept even the second contention advanced at the
hands of the learned counsel for the appellants, namely, that the
acquisition of the appellants’ land has violated the appellants’
Constitutional right under Article 300A of the Constitution of India.
49. We shall now advert to the third contention advanced at the
hands of the learned counsel for the appellants. It was the pointed
submission of the learned counsel for the appellants, that the Central
Government alone had jurisdiction in the matter of acquisition of land for
the Railways. Undoubtedly, the acquisition of the land in the facts and
circumstances of the present case was for establishing the NorthWestern Railway Zone Complex. Despite the aforesaid, we have
already concluded hereinabove, that on the subject of acquisition, the
only relevant entry in the Seventh Schedule of the Constitution was
entry 42 in list III, i.e., the Concurrent List. Besides the aforesaid, no
other entry can legitimately be referred to, wherein the acquisition of
land (even though for the Railways) is the pointed subject of
consideration. There was no challenge to any of the provisions of the
Acquisition Act. We have already drawn our conclusions on the basis of
65Page 66
the provisions of the Acquisition Act, framed by the Parliament under
entry 42 (in list III, of the Seventh Schedule). We have interpreted the
relevant provisions of the Acquisition Act, and on the basis thereof have
been persuaded to conclude, that the Government of Rajasthan was the
competent authority for acquiring the land under reference. In such
view of the matter, reliance on Articles 73 or 258 of the Constitution of
India, by the learned counsel for the appellants, was clearly
misconceived. The answer to the third contention, therefore, clearly
emerges from the conclusions drawn by us on the basis of the first
contention advanced at the hands of the learned counsel for the
appellants. For the above reasons, we find no merit even in the third
contention advanced on behalf of the appellants.
50. We shall now deal with the fourth issue canvassed at the hands
of the learned counsel for the appellants. The instant issue is
unconnected with the previous issues. From the sequence of facts
narrated hereinabove, it is apparent that the instant acquisition of land
was at the behest of the Railways, i.e., the Union Government. It was
pointed out, that on all administrative issues, the functioning of the
Central Government is regulated by Rules of Business. In this behalf,
our attention was invited to the Government of India (Allocation of
Business) Rules, 1961 and the Government of India (Transaction of
Business) Rules, 1961. It was the contention of the learned counsel for
the appellants, that the aforestated Rules of Business (framed under
Article 77 of the Constitution of India) have a binding and mandatory
effect. Breach of the Rules of Business, according to the learned
66Page 67
counsel for the appellants, would result in vitiation of the entire action.
Insofar as the instant case is concerned, it was sought to be canvassed,
that the Union of India had breached the Rules of Business. And the
said breach, would vitiate the impugned acquisition proceedings. In
order to make good the aforesaid submission, learned counsel for the
appellants, invited our attention to Rules 3 and 4 of the Government of
India (Transaction of Business) Rules, 1961. Rules 3 and 4
aforementioned are being extracted hereunder :
“3. Disposal of Business by Ministries.- Subject to the provisions of
these Rules in regard to consultation with other departments and
submission of cases to the Prime Minister, the Cabinet and its Committees
and the President, all business allotted to a department under the
Government of India (Allocation of Business) Rules, 1961, shall be
disposed of by, or under the general or special directions of, the
Minister-in-charge.
4. Inter-Departmental Consultations.- (1) When the subject of a case
concerns more than one department, no decision be taken or order
issued until all such departments have concurred, or, failing such
concurrence, a decision thereon has been taken by or under the
authority of the Cabinet.
Explanation- Every case in which a decision, if taken in one Department,
is likely to affect the transaction of business allotted to
another department, shall be deemed to be a case the
subject of which concerns more than one department.
(2) Unless the case is fully covered by powers to sanction
expenditure or to appropriate or re-appropriate funds,
conferred by any general or special orders made by the
Ministry of Finance, no department shall, without the
previous concurrence of the Ministry of Finance, issue any
orders which may-
(a) involve any abandonment of revenue or involve any
expenditure for which no provision has been made in
the appropriation act;
67Page 68
(b) involve any grant of land or assignment of revenue or
concession, grant, lease or licence of mineral or forest
rights or a right to water power or any easement or
privilege in respect of such concession;
(c) relate to the number or grade of posts, or to the strength
of a service, or to the pay or allowances of Government
servants or to any other conditions of their service
having financial implications; or
(d) otherwise have a financial bearing whether involving
expenditure or not;
Provided that no orders of the nature specified in clause (c) shall be
issued in respect of the Ministry of Finance without the previous
concurrence of the Department of Personnel and Training.
(3) The Ministry of Law shall be consulted on-
(a) proposals for legislation;
(b) the making of rules and orders of a general character in
the exercise of a statutory power conferred on the
Government; and
(c) the preparation of important contracts to be entered into
by the Government.
(4) Unless the case is fully covered by a decision or advice
previously given by the Department of Personnel and
Training that Department shall be consulted on all
matters involving-
(a) the determination of the methods of recruitment
and conditions of service of general application to
Government servants in civil employment; and
(b) the interpretation of the existing orders of general
application relating to such recruitment or conditions of
service.
(5) Unless the case is fully covered by the instructions issued or
advice given by that Ministry, the Ministry of External
Affairs shall be consulted on all matters affecting
India's external relations.”
It was pointed out on the basis of the aforesaid Rules, that if the subject
under consideration pertained to business of a singular department, the
68Page 69
determination thereof would be rendered “... under the general or
special directions of the Minister in-charge...”. As against the aforesaid,
it was pointed out, that in situations where the subject concerned
related to more than one department, no final decision could be taken,
and no final order could be passed, unless all the concerned
departments were agreeable to the contemplated action. It was,
however, pointed out, that in case of non-concurrence of one or the
other department, a final decision could still be taken, and a final order
could still be passed, but only in consonance with the determination of
the Cabinet.
51. Insofar as the present controversy is concerned, it was the
vehement contention of the learned counsel for the appellants, that the
administrative ministry relevant for the setting up of the North-Western
Railway Zonal Headquarter at Jaipur was the Ministry of Railways,
whereas, the Department of Land Resources was the concerned
department to deal with the matters pertaining to acquisition of land for
purposes of the Union. Insofar as the instant aspect of the matter is
concerned, learned counsel invited our attention to the Second
Schedule under the Government of India (Allocation of Business) Rules,
1961. Therein, under the Head ‘B’, the Department of Land Resources
has been vested with the subject of administration of the provisions of
the Acquisition Act, and matters relating to acquisition of land for
purposes of the Union. It was the pointed submission of the learned
counsel for the appellants, that there was no material on the record of
the case to indicate, that in the instant acquisition proceedings, the
69Page 70
concurrence of the Department of Land Resources was obtained. As
such, it was submitted, that the instant acquisition of land for the
Railways was liable to be set aside.
52. In order to further his contention that the Rules of Business have
a binding and mandatory character, learned counsel for the appellants
placed reliance on a decision rendered by this Court in MRF Limited etc.
vs. Manohar Parrikar & Ors., (2010) 11 SCC 374. Our attention was
invited to the following observations recorded therein :
“107. Thus from the foregoing, it is clear that a decision to be the
decision of the Government must satisfy the requirements of the
Business Rules framed by the State Government under the
provisions of Article 166(3) of the Constitution of India. In the case
on hand, as have been noticed by us and the High Court, the
decisions leading to the notifications do not comply with the
requirements of Business Rules framed by the Government of
Goa under the provisions of Article 166(3) of the Constitution and
the Notifications are the result of the decision taken by the Power
Minister at his level. The decision of the individual Minister cannot
be treated as the decision of the State Government and the
Notifications issued as a result of the decision of the individual
Minister which are in violation of the Business Rules are void ab
initio and all actions consequent thereto are null and void.
108. The appellants contended before this Court that another
Division Bench of the High Court in its earlier judgment of
21.1.1999 had held that the Notification dated 1.8.1996 was
clarificatory and that it did not create any extra financial liability on
the State Government requiring approval of the Cabinet in
compliance with the Business Rules before it was brought into
force. In our opinion the said Notification cannot be treated as
mere c1arificatory. It is a notification issued purportedly in terms
of a Government decision. It was a decision finalized at the level
of the Minister of Power alone and was taken in violation of the
Rules of Business framed under Article 166(3) of the Constitution
of India. The decision cannot be called a government decision as
understood under Article 154 of the Constitution, though it may
70Page 71
satisfy the requirements of authentication. Nevertheless mere
authentication as required under Article 166(2) of the Constitution
did not make it a government decision in law nor would it validate
a decision which is void ab initio. The validity of the notification
will have to be tested with reference to the constitutional
provisions and Business rules and not by their form or substance.
therefore, this contention of the appellants is liable to be rejected.”
No doubt, this Court in MRF Limited’s case (supra) has made a passing
reference to the effect, that violation of Rules of Business would render
all actions taken as void ab initio. In other words, breach of the Rules of
Business would render the entire action null and void.
53. We have duly considered the fourth submission advanced by the
learned counsel for the appellant. The aforesaid determination in MRF
Limited’s case (supra), has been rendered without examining the said
proposition with reference to Article 77 of the Constitution, as also, any
other legislative enactment. We would, therefore, refrain from pointedly
examining the issue (in a manner as would constitute our conclusion a
ratio decidendi on the said subject) since we are of the view, that the
same does not arise for consideration in the facts and circumstances of
this case. The acquisition in the present controversy was made by the
Government of Rajasthan, and therefore, there was hardly any
justification for the consultation of the Department of Land Resources of
the Government of India. It is only if the acquisition had been made by
the Railways, the question of consultation with the Department of Land
Resources would have arisen. In our view, reliance on the provisions of
the Government of India (Allocation of Business) Rules, 1961 and/or the
Government of India (Transaction of Business) Rules, 1961 in order to
71Page 72
assail the acquisition made in the facts and circumstances of the
present case by the Government of Rajasthan, is wholly misconceived.
54. The next contention, serially the fifth contention advanced at the
behest of the appellants was, that the choice of the appellants’ land for
acquisition was vitiated by fraud, and as such, was liable to be set
aside. In this behalf, the contention advanced at the hands of the
learned counsel for the appellants was, that the action of acquisition
would have been legitimate, if the Government of Rajasthan had
acquired one block of land for setting up of the North-Western Railway
Zone Complex. It was submitted, that the acquisition in question for the
purpose of establishing the Zonal Headquarter and staff quarters for
North-Western Railways is in two blocks. In this behalf, it is pointed out,
that there was motive and extraneous consideration in leaving out of
acquisition, the land between the two blocks. It was submitted, that the
left out land (between the two blocks acquired) was owned by highly
placed bureaucrats and police officers. It was also submitted, that the
action of acquiring the appellants’ land by consciously leaving out land
in the ownership of highly placed influential persons would also be hit by
Articles 14 and 15 of the Constitution of India. According to the learned
counsel, the impugned acquisition process was also liable to be
described as arbitrary and discriminatory.
(i) On the issue of mala fides and fraud, learned counsel for the
appellants placed reliance on the decision rendered in Pratap Singh vs.
State of Punjab, (1964) 4 SCR 733 wherein this Court held as under :
72Page 73
“8. Doubtless, he who seeks to invalidate or nullify any act or
order must establish the charge of bad faith, an abuse or a
misuse by Government of its powers. While the indirect motive or
purpose, or bad faith or personal ill-will is not to be held
established except on clear proof thereof, it is obviously difficult to
establish the state of a man's mind, for that it what the appellant
has to establish in this case, though this may sometimes be done
(See Edgington v. Fitzmaurice [1855] 29 C.D. 459.. The difficulty
is not lessened when one has to establish that a person in the
position of a minister apparently acting on the legitimate exercise
of power has, in fact, been acting mala fide in the sense of
pursuing an illegitimate aim. We must, however, demur to the
suggestion that mala fide in the sense of improper motive should
be established only by direct evidence that is that it must be
discernible from the order impugned or must be shown from the
notings in the file which preceded the order. If bad faith would
vitiate the order, the same can, in our opinion, be deduced as a
reasonable and inescapable inference from proved facts.”
(ii) On the subject of classification and equality, learned counsel for
the appellants placed reliance on Col. A.S. Iyer vs. V.
Balasubramanyam, (1980) 1 SCC 634, and invited our attention to the
following conclusions drawn therein :
“57. Sri Govindan Nair, with assertive argument, gave us anxious
moments when he pleaded for minimum justice to the civilian
elements. He said that the impugned rules were so designed, or
did so result in the working, that all civilians, recruit or promotee,
who came in with equal expectations like his military analogue,
would be so outwitted at all higher levels that promotions, even in
long official careers would be hopes that sour into dupes and
promises that wither away as teasing illusions. In effect, even if
not in intent, if a rule produces indefensible disparities, whatever
the specious reasons for engrafting service weightage of the army
recruits, we may have had to diagnose the malady of such
frustrating inequality. After all, civilian entrants are not expendable
commodities, especially when considerable civil developmental
undertakings sustain the size of the service. And their
contentment through promotional avenues is a relevant factor.
The Survey of India is not a civil service 'sold' to the military,
stampeded by war psychosis. Nor does the philosophy of Article
14 or Article 16 con-, template de jure classification and de facto
easteification in public services based on some meretricious or
73Page 74
plausible differentiation, 'Constitutional legalistics can never
drown the fundamental theses that, as the thrust of Thomas's
case State of Kerala v. N.M. (1976) I LLJ 376 SC and the tailpiece of Triloki Nath Khosa's case State of J & K v. Triloki Nath
khoa (1974) I LLJ 121 SC bring out, equality clauses in our
constitutional ethic have an equalising message and egalitarian
meaning which cannot be subverted' by discovering classification
between groups and perpetuating the inferior-superior complex by
a neo-doctrine. Judges may interpret, even make viable, but not
whittle down or undo the essence of the Article. This tendency, in
an elitist society with a dischard casts mentality, is a disservice to
our founding faith, even if judicially sanctified. Subba Rao J. hit
the nail on the head when he cautioned in Lachhman Das v. State
of Punjab [1963] 2 SCR 353 :
‘The doctrine of classification is only a subsidiary rule
evolved by courts to give a practical content to the said
doctrine. Overemphasis on the doctrine of classification or
an anxious and sustained attempt to discover some basic
for classification may gradually and imperceptibly deprive
the Article of its glorious content. That process would
inevitably end in substituting the doctrine of classification
for the doctrine of equality; the fundamental right to equality
before the law and the equal protection of the laws may be
replaced by the doctrine of classification.’
The quintessence of the constitutional code of equality is brought
out also by Bose, J. in Bidi Supply Co. case Bidi Supply Co. v.
The Union of India and Ors. [1956] 29 ITR 717 (SC) .
The truth is that it is impossible to be precise, for we are dealing,
with intangibles and though the results are clear it is impossible to
pin the thought down to any precise analysis. Article 14 sets out,
to my mind, an attitude of mind, -a way of life, rather than a
precise rule of law. It embodies a general awareness in the
consciousness of the people at large of. something that exists
and which is very real but which cannot be pinned down to any
precise analysis of fact save to say in a given case that it falls this
side of the line or that, and because of that decisions on the same
point will vary as conditions vary, one conclusion in one part of
the country and another somewhere else; one decision today and
another tomorrow when the basis of society has altered and the
structure of current social thinking is different. It is not the law that
alters but the changing conditions of the times and Article 14
narrows down to a question of fact which must be (determined by
the highest Judges in the land as each case arises.”
(iii) In continuation of the aforesaid, learned counsel also placed
reliance on E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3;
74Page 75
Menaka Gandhi v. Union of India, (1978) 1 SCC 248; Ramana Dayaram
Shetty vs. International Airport Authority of India, (1979) 3 SCC 489;
and Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.
55. We have examined the last contention advanced at the hands of
the learned counsel for the appellants. The instant contention is based
on a factual assertions, namely, that the Government of Rajasthan
acted arbitrarily and in a discriminatory fashion, by deliberately and
intentionally leaving out of the acquisition process, land belonging to
highly placed influential persons. Before venturing to examine the
instant contention advanced at the behest of the appellants, it is
necessary to determine, whether the factual position, at the time of
acquisition was, as is being alleged by the appellants. Unfortunately,
our determination on the instant aspect of the matter is contrary to the
assertions advanced at the hands of the appellants. Insofar as the
instant aspect of the matter is concerned, reference may be made to
paragraph 11 of the counter affidavit filed on behalf of the State of
Rajasthan, wherein, it was asserted as under :
“It would be relevant to mention that the argument raised about
certain lands of IAS & IPA officials being selectively left-out is
without any substance. This argument would only suffice if the
land belonging to the IAS/IPS officials on the date on of
acquisition. This is apart from the fact that certain lands would be
left out in acquisition proceedings. It is relevant to mention that
no land belongs to any IAS/IPS official on the date of acquisition
and any subsequent purchase would not invalidate the acquisition
proceedings. Thus, the finding on this aspect does not suffer
from any legal infirmity.”
The aforesaid factual position has not been denied on behalf of the
appellants before this Court. Thus viewed, it is apparent that the land
75Page 76
which was left out, and which falls between the two blocks of land
acquired, cannot be stated to have been owned by influential
bureaucrats or police officers, at the time when the acquisition in
question was made. In the aforesaid view of the matter, it is not
possible for us to conclude, that the leaving out the land between the
two blocks of acquired land, and further that, the choice of acquisition of
the appellants’ land to the exclusion of the land left out of acquisition,
was vitiated for reasons of fraud, mala fides, arbitrariness or
discrimination. For the reasons recorded hereinabove, we find no merit
even in the last contention advanced at the hands of the learned
counsel for the appellants.
56. It is necessary to record herein that the challenge raised at the
behest of the appellants, to the acquisition of land made by the
Government of Rajasthan, for the Railways, was vehemently opposed
by the official respondents for a variety of reasons.
More particularly on
the grounds of delay and latches, as also, locus standi of the appellants
to assail the acquisition proceedings. Had we dealt with the objections
raised by the respondents and found merit therewith, it may not have
been necessary for us to examine the merits of the claim raised by the
appellants before us.
We may acknowledge, that at the first blush, the
objections raised by the official respondents did not seem to be bereft of
merit. Yet, since the issues canvassed at the hands of the learned
counsel for the appellants raised important issues of law, we considered
it just and appropriate to deal with them in order to settle the legal
proposition canvassed. Having recorded our conclusions on the issues
76Page 77
canvassed before us, we are of the view, that it is no longer necessary
for us to deal with the objections/submissions canvassed on behalf of
the official respondents.
57. For the reasons recorded hereinabove, we find no merit in these
appeals. The same are accordingly dismissed.
………………………….J.
(P. Sathasivam)
………………………….J.
(Jagdish Singh Khehar)
New Delhi;
July 1, 2013.
77
Page 1
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4824 OF 2013
(Arising out of SLP (C) No. 4722 OF 2012)
Rajendra Nagar Adarsh
Grah Nirman Sahkari Samiti Ltd. … Appellant
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4825 OF 2013
(Arising out of SLP (C) No. 4874 OF 2012)
Yogesh Chand Arora … Appellant
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4826 OF 2013
(Arising out of SLP (C) No. 5041 OF 2012)
Durga Devi Dharmarth Trust & Anr. … Appellants
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4827 OF 2013
(Arising out of SLP (C) No. 5089 OF 2012)
Naresh Chand Arora … Appellant
Versus
State of Rajasthan & Ors. … Respondents
1Page 2
WITH
CIVIL APPEAL NO. 4828 OF 2013
(Arising out of SLP (C) No. 5206 OF 2012)
Madrampura Grih Nirman Sahkari
Samiti Ltd. & Ors. … Appellants
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4829 OF 2013
(Arising out of SLP (C) No. 12072 OF 2012)
Yashmeen Abrar … Appellant
Versus
Union of India & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4830 OF 2013
(Arising out of SLP (C) No. 21205 OF 2012)
Sunita Rathi & Ors. … Appellants
Versus
State of Rajasthan & Ors. … Respondents
WITH
CIVIL APPEAL NO. 4831 OF 2013
(Arising out of SLP (C) No. 21226 OF 2012)
Arjun Nagar Vikas Samiti
through its President
Vimla Verma … Appellant
Versus
State of Rajasthan & Ors. … Respondents
J U D G M E N T
2Page 3
Jagdish Singh Khehar
1. The instant common order will dispose of the following matters:-
(i) Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd.
vs. State of Rajasthan & Ors., Civil Appeal arising out of
SLP (C) No. 4722 of 2012);
(ii) Yogesh Chand Arora vs. State of Rajasthan & Ors., Civil
Appeal arising out of SLP (C) No. 4874 of 2012);
(iii) Durga Devi Dharmarth Trust & Anr. vs. State of Rajasthan
& Ors., Civil Appeal arising out of SLP (C) No. 5041 of
2012);
(iv) Naresh Chand Arora vs. State of Rajasthan & Ors., Civil
Appeal arising out of SLP (C) No. 5089 of 2012);
(v) Madrampura Grih Nirman Sahkari Samiti Ltd. & Ors.vs.
State of Rajasthan & Ors., Civil Appeal arising out of SLP
(C) No. 5206 of 2012);
(vi) Yashmeen Abrar vs. Union of India & Ors., Civil Appeal
arising out of SLP (C) No. 12072 of 2012);
(vii) Sunita Rathi & Ors. vs. State of Rajasthan & Ors., Civil
Appeal arising out of SLP (C) No. 21205 of 2012);
(viii) Arjun Nagar Vikas Samiti through its President Vimla
Verma vs. State of Rajasthan & Ors., Civil Appeal arising
out of SLP (C) No. 21226 of 2012);
2. Leave granted in all the matters.
3. Insofar as the instant judgment is concerned, Rajendra Nagar
Adarsh Grah Nirman Sahkari Samiti Ltd. vs. State of Rajasthan & Ors.
(i.e., the Civil Appeal arising out of SLP (C) No. 4722 of 2012 shall be
treated as the lead case. The factual narration recorded herein, shall
be based on the pleadings thereof. However, in situations wherein,
during the course of hearing, reference has been made to pleadings
from other cases, the same will also be adverted to.
3Page 4
4. The appellants herein are all land losers. Their lands were
acquired for establishing a zonal office complex, and residential
quarters for Railway staff, for the North Western Railway Zone, at Jaipur
in the State of Rajasthan.
5. The sequence of facts commencing from the initiation, and
leading to the finalization of the acquisition proceedings, are of pointed
significance, in the present controversy. As such, all the relevant factual
details, are being narrated hereunder, first of all.
6. On 15.11.1996, the Officer on Special Duty, North Western
Railway, posted at Jaipur, addressed a communication to the
Commissioner, Jaipur Development Authority, Jaipur, indicating that 26
bighas of Government land was available in front of the Getor Jagatpura
railway station. It was pointed out, that the aforesaid land had been
allotted to the Scouts & Guides Organization. It was submitted, that the
said land was ideally located, and could be effectively put to use for
establishing the required infrastructure for the North Western Railway
Zone complex, at Jaipur. It was accordingly requested, that the said
Government land be transferred to the Railways. A relevant extract of
the aforesaid letter is reproduced hereunder:-
“As you are aware, the new North-Western Railway Zone has
been set up with headquarters at Jaipur.
The actual requirements of land for setting up of the Zonal office
and Quarters at Jaipur is being worked out which may take some
time, but in any case adequate railway land is not available at
Jaipur for the purpose.
It is understood that 26 Bighas of land of the State Government to
allotted to Scouts & Guides Organization is available in front of
Getor Jagatpura Railway Station. This is an ideal location for use
4Page 5
by the North-Western Railway and it is requested that this land
may be transferred to Railway early for immediate use. Further
requirements of land will be indicated to the State Government in
due course.”
(emphasis is ours)
The first communication on the record of the case, relating to the
requirement of land for setting up the North Western Railway Zone
Complex, reveals the desire (of the Railways), that vacant Government
land be transferred by the State Government, to the Railways. At this
juncture, one would notice, that there is no thought about acquiring land
for the Railways.
7. Following the aforesaid communication dated 15.11.1996, the
Officer on Special Duty, North Western Railway, addressed another
letter dated 12.12.1996 to the Commissioner, Jaipur Development
Authority, Jaipur, depicting the total requirements of the Railways for
setting up the aforesaid zonal headquarters. The text of the said letter
is being reproduced hereunder:-
“In continuation of this office letter referred above the appropriate
requirement of land for setting up of the zonal office and staff
quarters at Jaipur has been assessed and about 87 acres of land
is considered as necessary for this purpose.
It is proposed to have the land for the above purpose at the
locations at Getor Jagatpura. At least 40 acres of land will be
required including the 20 bigha for which a request has already
been made for transfer vide this office letter referred above. For
the reasoning 47 acres land nearest to the Jaipur Railway Station
in the Prithviraj Nagar on Jaipur-Ajmer Road will be suitable.
It is therefore requested that 40 acres land including 20
bigha of State Government land now used by scouts and guides
at Getor Jagatpura and 47 acres land in Prithviraj Nagar scheme
on Jaipur Ajmer Road nearest to Jaipur Railway Station may be
acquired and transferred to Railways.
Necessary plans of both the areas may kindly be made
available to Railways.”
5Page 6
(emphasis is ours)
In its follow up action, the State Government was informed about the
extent of land required. The Railways sought governmental land to
satisfy its requirement. The process thus suggests, that the Railways
and the State Government, were jointly pursuing the objective. The
State Government was requested to acquire some more land, so as to
make up the deficiency, and to transfer the same to the Railways.
8. Mr. Ram Vilas Paswan, the then Union Minister for Railways
addressed a letter dated 30.12.1996 to Mr. Bhairon Singh Shekhawat,
the then Chief Minister of the State of Rajasthan, indicating the Union
Government’s desire, to set up a zonal complex for the North Western
Railways, at Jaipur. The Railways requested the State Government, to
provide the required land “free of cost”. It was emphasized by the Union
Minister for Railways, that the setting up of the new Railway Zone at
Jaipur, would improve train services to and within the State of
Rajasthan, and thereby, meet the expectations of public and private
entities, of the area. Relevant extract of the aforesaid letter is being
reproduced hereunder:-
“In order to improve the train services in Rajasthan, meet the
expectations of public and private more responsive
administration, the Railways have decided to create a new Zone,
North Western Railway with Zonal Hqrs. Office at Jaipur.
The setting up of the Railway Zonal Hqrs. Office, would
require office accommodation, housing for staff, and other
ancillary facilities, all of which need about 150 to 200 acres of
land.
May I therefore request you to ask the concerned officials to
identify a suitable piece of land, about 150-200 acres at Jaipur,
and provide the same to the Railways free of cost for setting up
6Page 7
the Zone. This gesture of the State Government would go a long
way in enabling us to make the Zone functional early.”
(emphasis is ours)
A perusal of the aforesaid letter reveals, that the Railway Ministry’s
request was for about 150-200 acres of land. The land would be used
for establishing zonal offices for the North Western Railway Zone, and
also, for raising residential quarters for Railway staff. The letter
indicated, that the gesture of the State Government to provide land to
the Railways “free of cost”, would go a long way in making the zone
functional. If the acquired land, was to exclusively serve the purpose of
the Railways, then financial contribution thereto by the State
Government, would be unthinkable. But strangely, the Union Minister
for Railways was expecting the State Government to provide the
required land, even after acquiring it, “free of cost”. Logically, this would
be acceptable, when the State (of Rajasthan) was to be a joint
beneficiary. The incidental benefit to the State, is apparent from the
opening words of the letter. The Union Minister in his above letter
emphasized, that the proposed project would “…improve the train
services in Rajasthan, meet the expectations of public and private…”.
9. On 28.2.1997, the Commissioner, Jaipur Development Authority,
pursuant to the correspondence with the Officer on Special Duty, North
Western Railway, pressed the Secretary, Department of Transport,
Government of Rajasthan, to initiate acquisition proceedings in respect
of land identified at villages Bindayaka and Todi Ramjanipura, in tehsil
Sanganer of district Jaipur. Relevant portion of the aforesaid letter is
being reproduced below:-
7Page 8
“Please peruse the letter dated 12.12.1996 by Officer, North
Western Railway Zone, Jaipur. The Railway had demanded land
for Railway Zonal Office and staff quarters. You have discussed
in this reference with the Commissioner in the room of Chief
Secretary. The land village Bindayaka and Todi Ramjanipura,
Tehsil Sanganer is required by Railway department being near to
the Jagatpura Getor Railway Station.
It would be relevant to acquire the required land by
Transport Department, Rajasthan, Jaipur. Therefore, the
proceedings of acquisition of 4-39 hectares of land of village
Bindayaka and 9-91 hectares of Todi Ramjanipura, Tehsil
Sanganer, Jaipur is to be acquired. The description of the land to
be acquired, trace map and six copies of land record are annexed
with the prayer that the acquisition proceedings be done at your
department level for the Railway Department immediately.”
(emphasis is ours)
10. On 29.3.1997, the Deputy Secretary, Transport Department,
Government of Rajasthan, wrote a letter to the District Collector, Jaipur,
requiring him to furnish details of land, as also, land records pertaining
to villages Bindayaka and Todi Ramjanipura, which was being
considered for acquisition for the North Western Railway Zonal
complex. The text of the aforesaid letter, is being reproduced
hereunder:-
“The Secretary, Jaipur Development Authority, Jaipur by letter no.
P9 (295) JDA/Acqui. Off./Land Acqui./97/362 dated 20.2.1997
informed this office that Railway Department vide letter dated
12.12.1996 placed a proposal for the land for Zonal Office in
Jaipur and Staff Quarters. As per proposal land of village
Bindayaka and Todi Ramjanipura, Tehsil Sanganer, Jaipur near
Getor Jagatpura Railway Station is to be acquired. In this
reference information regarding details of land, trace map and
land record alongwith the process of acquisition and inspection
report of the acquisition officer be sent to this office.”
(emphasis is ours)
8Page 9
11. On 9.5.1997, a communication was addressed by the Officer on
Special Duty, North Western Railway, to the Chief Secretary,
Government of Rajasthan, reminding him of the request made by the
Union Minister for Railways. Relevant extract of the said
communication dated 9.5.1997, is being set out hereunder:-
“It had been requested by Hon’ble Minister for Railways, vide this
D.O. letter referred above (copy enclosed). To the Chief Minister
of Rajasthan, to identify a suitable piece of land about 150-200
acres at Jaipur and to provide the same to the railways, free of
cost, for setting up of new Railway Zone at Jaipur. Action taken
in the matter by the State Government may please be advised, for
taking further necessary action accordingly.
The State Government officials required to be contacted for
pursuing the case may also please be advised so as to enable
me to instruct my officers for expediting the process of acquisition
of land for setting up of facilities for North Western Railway zone.”
(emphasis is ours)
A perusal of the letter extracted above reveals, that officers of the
Railways establishment were in touch with highest levels of
governmental functionaries in the State of Rajasthan, and were
seriously soliciting land “free of cost” for establishing the North Western
Railway Zone complex.
12. Pursuant to the aforesaid correspondence, the Secretary,
Transport Department, Government of Rajasthan issued a notification
under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred
to as, the Acquisition Act), indicating the State Government’s desire to
acquire 15.50 hectares of land situated in the revenue estate of villages
Bindayaka and Todi Ramjanipura, in tehsil Sanganer, of district Jaipur.
The public purpose depicted therein was, that the aforesaid land was
9Page 10
required to establish a zonal office of the North Western Railways and
for raising residential quarters for Railway staff. The aforesaid
notification was duly published in the State Government gazette.
Importantly, the acquisition of land for the project under reference, was
being made by the Transport Department of the Government (of
Rajasthan), presumably because the setting up of the project was
aimed at improving transport services to and within the State, for the
benefit of public and private entities. In terms of the mandatory
requirements of the Acquisition Act, the aforesaid notification under
Section 4, was published on 6.9.1997 in the “Dainik Navjyoti” and on
7.9.1997 in the “Rajasthan Patrika”. The pleadings of the case bearout, that publication in the locality was also made on 10.4.1998.
13. Yet again, the Deputy Chief Engineer, North Western Railway
addressed a communication dated 11.6.1998 to the Deputy Secretary,
Transport Department, Government of Rajasthan intimating him, that
even though permission had been received to acquire 69 bighas (17.52
hectares) of land near Getor Jagatpura railway station, yet no further
details had been communicated by the State Government, in respect of
the action taken by it, for acquiring the aforesaid land for the Railways,
after the publication of the notification under Section 4 of the Acquisition
Act. The aforesaid factual position, is evident from the letter dated
11.6.1998, which is reproduced hereunder:-
“In the above subject it is submitted that there is no information of
further proceedings after notification under Section 4 has been
published on 19.8.1997. Please, inform this office immediately
after proper proceedings to acquire land for Railway Zonal Office
and staff quarters.
10Page 11
It is pertinent to mention that permission has been received by
this office from Railway Ministry to acquire 69 bighas (17.52
hectare) land near Getor Jagatpura Railway Station. Hence
inform this office immediately regarding proceedings to acquire of
the above land.”
The above communication reveals that the Railways, as well as, the
State Government were proceeding in the matter in complete tandem.
14. Objections were invited under Section 5A of the Acquisition Act
from persons interested in the land. Having considered the objections
raised by the persons interested, the Land Acquisition Collector
submitted a report to the Government. Insofar as Rajendra Nagar
Adarsh Grah Nirman Sahkari Samiti Ltd. (appellant in the Civil Appeals
arising out of SLP (C) no. 4722 of 2012, which is hereinafter referred to
as, the appellant Samiti) is concerned, the determination was as under:-
“An application on 8.4.2009 was filed by Shrawan Singh Khinchi,
Hemant Goyal, Prabhu Lal Meena, Sharda Purohit, Nirmala,
Suresh Kumar Sharma, Yogesh Aroda, Naresh Chand Aroda,
Ganga Sahay Meena, residents/members of Madrampura Grih
Nirman Sahakari Samiti planning Prakash Nagar and Gopalpura
Grih Nirman Sahakari Samiti planning Jagatppura first (Mayur
Vihar) stating that the tenants of Khasra no. 280, 282, 284 and
291 Girijadevi and Rampal Das Swami sold and handed over the
possession of the land to Madrampura Grih Nirman Sahakari
Samiti and Gopalpura Grih Nirman Sahakari Samiti in 1981 and
received the entire sale consideration. The societies have
allotted the land to the plot holders/members from 1981 to 1983
and most of the members have constructed houses before the
acquisition proceedings. The applicants have submitted that the
houses have been constructed before the acquisition
proceedings. Hence if the land is left out of acquisition being on
one side corner only, it will not affect the railway scheme. The
applicants submitted that the tenant Girija Devi and Rampal Das
Swami are not interested persons, therefore, their objections
should not be considered and they should be given 15 days time
to file objections.
Objections of the applicants were considered and the
application dated 8.4.1999 is filed which is after due date
5.4.1999. Even then the claim is being decided on merits in the
interest of justice. The applicants have not produced any
11Page 12
documents or evidence in their favour. As it is determined
hereinabove that the society cannot get any right only on the
basis of agreement to sale and similarly the members cannot get
any legal right on the basis of allotment letter issued by society.
This matter is purely a matter between the Khatedar and society
and its members. The plot holders cannot be considered as
interest persons to get compensation. They can get
compensation from the Khatedars. Hence the objection is
rejected.
(emphasis is ours)
A perusal of the aforesaid determination reveals, that the appellant
Samiti had not filed its objections within the prescribed period of
limitation, and as such, its objections could have been rejected simply
because the same were filed belatedly. Yet the matter was examined
on merits. The claims of the appellant Samiti were found to be
unsustainable because the appellant Samiti did not have any right to file
objections. In this behalf it was noticed, that the appellant Samiti had
relied on agreements to sell in respect of the acquired land.
Agreements to sell, it was felt, did not vest any legal right in the
appellant Samiti (on the date of issuance of the notification under
Section 4 of the Acquisition Act).
15. On 19.8.1997, the State Government authorized the OSD-II i.e.
the Collector, Jaipur, to enter into the land sought to be acquired.
16. After having dealt with the objections of interested persons
including the appellant Samiti, on the subject of compensation, it was
observed as under:-
It was considered as to who should be given the compensation of
the acquired land. The objections filed before this court makes it
clear that certain Khatedar tenants have transferred their land to
the housing societies or certain other persons and construction
has also been made by such persons. First of all, no such sale
agreement has been filed before this court. Secondly land cannot
12Page 13
be considered to be sold on the basis of agreement to sale.
According to Section 17 of the Registration Act, any immoveable
property of value more than Rs.100/- is required to be registered
compulsorily. Hence any transfer of possession by unregistered
document is not valid. Hon’ble Rajasthan High Court has
confirmed this view in Writ Petition no. 2027/92, 1017/92, 4102/91
by judgment passed on 8.12.1992. Hence the transfer by way of
agreement to the housing society cannot be recognized. And
subsequent transfer of possession is illegal. It has been settled in
the case of Banwari Lal Vs. State of Rajasthan & Ors., 1986 (2)
WLN 648, that such transfer of land for non-agricultural purpose
is useless. Transfer of agricultural land for non-agricultural
purposes is against the provisions of Section 42A of the
Rajasthan Tenancy Act and Section 90A of the Land Revenue
Act. Thus any constructions made by persons other than
Khatedars on the land under acquisition are illegal. Therefore
compensation for the illegal construction is not proper.”
(emphasis is ours)
17. Having rejected the objections raised by the persons interested
(including all those at whose behest, the present proceedings have
been initiated before this Court), the State Government notified its
declaration under Section 6 of the Acquisition Act, in the State
Government gazette, expressing its final determination for acquiring the
land in question. The aforesaid declaration dated 13.1.1999 was
published in the State Government gazette dated 21.1.1999.
18. Thereafter, public notices were issued by the Land Acquisition
Officer, intimating all interested persons the intent of the State
Government to take possession of the acquired land. On 21.3.2001, the
Land Acquisition Officer passed an award, determining the
compensation payable to land owners, whose land was being acquired.
19. The first contention advanced at the hands of the learned counsel
for the appellants was, that the instant acquisition proceedings
emerging out of the notification issued under Section 4 of the
13Page 14
Acquisition Act (dated 19.8.1997), and the consequential declaration
under Section 6 of the Acquisition Act (dated 13.1.1999) could not have
been issued by the State Government. In fact, it was the pointed
submission of the learned counsel for the appellants, that the State
Government had no jurisdiction to acquire the land in question. In this
behalf it was submitted, that the land was for the use and utility of the
Railways, namely, for establishing zonal offices for the North-Western
Zone, as also, for raising residential quarters for the staff to be posted
there. Since Railways is a Union subject (under entry 22 of the Union
List, in the Seventh Schedule to the Constitution of India), it was
submitted, that it is the Union Government alone, which had the
jurisdiction to acquire the land in question. In so far as the instant
aspect of the matter is concerned, learned counsel for the appellants
invited our attention to Sections 4 and 6 of the Acquisition Act. The
aforesaid provisions are being extracted herein :
“4. Publication of preliminary notification and powers of officers
thereupon—(1) Whenever it appears to the appropriate
Government that land in any locality is needed or is likely to be
needed for any public purpose or for a company a notification to
that effect shall be published in the Official Gazette [and in two
daily newspapers circulating in that locality of which at least one
shall be in the regional language] and the Collector shall cause
public notice of the substance of such notification to be given at
convenient places in the said locality the last of the dates of such
publication and the giving of such public notice, being hereinafter
referred to as the date of publication of the notification.
(2) Thereupon it shall be lawful for any officer, either, generally or
specially authorised by such Government in this behalf, and for
his servants and workmen, to enter upon and survey and take
levels of any land in such locality;
to dig or bore in the sub-soil;
14Page 15
to do all other acts necessary to ascertain whether the land
is adapted for such purpose;
to set out the boundaries of the land proposed to be taken
and the intended line of the work (if any) proposed to be
made thereon;
to mark such levels, boundaries and line by placing marks
and cutting trenches,
and, where otherwise the survey cannot be completed and
the levels taken and the boundaries and line marked, to cut
down and clear away any part of any standing crop, fence
or jungle:
Provided that no person shall enter into any building
or upon any enclosed court or garden attached to a
dwelling-house (unless with the consent of the
occupier thereof) without previously giving such
occupier at least seven days' notice in writing of his
intention to do so.
xxx xxx xxx
6. Declaration that land is required for a public purpose.— (1)
Subject to the provisions of Part VII of this Act, when the
appropriate Government is satisfied after considering the report, if
any, made under section 5A, sub-section (2), that any particular
land is needed for a public purpose, or for a company, a
declaration shall be made to that effect under the signature of a
Secretary to such Government or of some officer duly authorised
to certify its orders an different declarations may be made from
time to time in respect of different parcels of any land covered by
the same notification under section 4, sub-section (!), irrespective
of whether one report or different reports has or have been made
(wherever required) under section 5-A, sub-section (2):
Provided that no declaration in respect of any particular land
covered by a notification under section 4, sub-section (1),--
(i) published after the commencement of the Land
Acquisition (Amendment and Validation) Ordinance, 1967
but before the commencement of the Land Acquisition
(Amendment) Act, 1984 shall be made after the expiry of
three years from the date of the publication of the
notification; or
15Page 16
(ii) published after the commencement of the Land
Acquisition (Amendment) Act, 1984, shall be made after the
expiry of one year from the date of the publication of the
notification:
Provided further that no such declaration shall be
made unless the compensation to be awarded for
such property is to be paid by a company, or wholly
or partly out of public revenues or some fund
controlled or managed by a local authority.
Explanation 1.-In computing any of the periods
referred to in the first proviso, the period during which
any action or proceeding to be taken in pursuance of
the notification issued under Section 4, sub-section
(1), is stayed by an order of a Court shall be
excluded.
Explanation 2.-Where the compensation to be
awarded for such property is to be paid out of the
funds of a corporation owned or controlled by the
State, such compensation shall be deemed to be
compensation paid out of public revenues].
(2) Every declaration shall be published in the Official Gazette,
and in two daily newspapers circulating in the locality in which the
land is situate of which at least one shall be in the regional
language, and the Collector shall cause public notice of the
substance of such declaration to be given at convenient places in
the said locality (the last of the date of such publication and the
giving of such public notice, being hereinafter referred to as the
date of publication of the declaration), and such declaration shall
state] the district or other territorial division in which the land is
situate, the purpose for which it is needed, its approximate area,
and where a plan shall have been made of the land, the place
where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the
land is needed for a public purpose or for a Company, as the
case may be; and, after making such declaration the appropriate
Government may acquire the land in manner hereinafter
appearing.”
(emphasis is ours)
16Page 17
A perusal of Sections 4 and 6 extracted above reveal, that it is the
“appropriate Government” which is to be satisfied about the public
purpose for which the land in question is to be acquired. And it is the
“appropriate Government” alone, which is vested with the
responsibilities contemplated under the aforesaid Sections 4 and 6.
Accordingly, it is only the “appropriate Government” which can issue the
required notifications expressing the intention to acquire land, and
thereafter, the postulated declaration, after examining the objections of
the persons interested.
20. In order to substantiate the appellants’ contention, that jurisdiction
to acquire land for the Railways, could have been exercised only by the
Central Government, and that the State Government had no authority to
acquire land for the Railways, learned counsel placed reliance on
Section 3(ee) of the Acquisition Act. Section 3(ee) aforementioned is
being reproduced below :
“3(ee) The expression "appropriate Government" means in
relation to acquisition of land for the purposes of the Union, the
Central Government, and, in relation to acquisition of land for any
other purposes, the State Government.”
Relying on Section 3(ee) extracted above, it was the submission of the
learned counsel for the appellants, that in relation to acquisition of land
for the Union, the Central Government alone had the jurisdiction to
acquire the land. Accordingly, it was contended, that it was the Central
Government alone, which had the jurisdiction to issue the prescribed
notification under Section 4 of the Acquisition Act, (expressing the
intention of the Union Government to acquire, the land). Having
17Page 18
thereby, brought the “appropriate Government’s” intention to acquire the
land to the notice of all interested persons, and having considered the
objections (if any) filed at the behest of such interested persons, the
Central Government alone could have issued the consequential
declaration under Section 6 of the Acquisition Act. Learned Counsel for
the appellants was emphatic, that the notification to acquire land for the
Railways could have only been issued by the Central Government.
21. Learned counsel for the appellants ventured to substantiate his
above contention, by reading the definition of the term ‘appropriate
Government’ along with the said words used in Sections 4, 5, 5A(2), 6,
7, the first and second proviso to Section 11(1), Sections 12 to 14, 15A,
16, 17(1) and (2), 31(3), 40, 41, 48, 49(2) and 50 of the Acquisition Act.
The thrust of the instant submission is being summarized hereunder:
Firstly, referring to Section 4 of the Acquisition Act, it was the
submission of the learned counsel for the appellants, that the use of the
term “appropriate Government” in Section 4(1) of the Acquisition Act,
with reference to the publication of the intention to acquire land (by way
of a notification) has to be visualized with reference to the definition of
the said term under Section 3(ee) of the Acquisition Act. On such
examination, according to the learned counsel, it would clearly emerge,
that it was only the Central Government which could have issued the
notification dated 19.8.1997. But in the present case, the said
notification has been issued by the Government of Rajasthan.
18Page 19
Secondly, with reference to Section 5 of the Acquisition Act, it was
submitted, that the term “Collector” used therein, must be viewed with
reference to Section 3(c) of the Acquisition Act. Section 3(c) is being
extracted hereunder:
“3(c) the expression "Collector" means the Collector of a district,
and includes a Deputy Commissioner and any officer specially
appointed by the Appropriate Government to perform the
functions of a Collector under this Act”
Based on the aforesaid definition of the term “Collector, it was the
contention of the learned counsel for the appellants, that the nomination
of the “Collector/Deputy Commissioner/Officer specially appointed” has
to be made by the “appropriate Government”. Since the “appropriate
Government” in the facts and circumstances of the present case is the
Central Government, according to the learned counsel, the nomination
of the ‘Collector’ with reference to Section 5 of the Acquisition Act, could
only have been ordered by the Central Government; whereas, it is
apparent from the facts of this case, that the State Government by an
order dated 19.8.1997, authorized the SDO-II/Land Acquisition
Officer/Collector, Jaipur, as “Collector” for all purposes connected with
the present acquisition. The nomination of the Collector by the State
Government, when the land was being acquired for the benefit of the
Railways, according to the learned counsel, was clearly beyond the
jurisdiction of the State Government.
Thirdly, with reference to Section 5A(2) of the Acquisition Act, it was
submitted, that the objections under Section 5 of the Acquisition Act are
to be made to the Collector in writing. And, it is the Collector who is to
19Page 20
afford an opportunity of hearing to the persons concerned, before
submitting a report to the appropriate Government. Learned counsel
vehemently contended, that in interpreting Section 5A(2) of the
Acquisition Act, the term ‘Collector’ has to be interpreted in consonance
with the definition thereof under Section 3(c), and with reference to the
term “appropriate Government” defined in Section 3(ee) of the
Acquisition Act. Thus viewed, it was the submission of the learned
counsel, that not only the “Collector” to whom objections were meant to
be addressed, but the Collector who had to consider and dispose of the
said objections, ought to have been a person nominated by the Central
Government. Herein, according to the learned counsel, admittedly the
State Government had notified the “Collector” for acquisition of the land
in question. The receipt of the objections, as also, the determination
thereof, must, therefore, be deemed to have been rendered by an
authority having no jurisdiction (either to receive the objections or to
submit a report to the appropriate Government with reference to said
objections), in the matter.
Fourthly, it was contended, that the declaration under Section 6 of the
Acquisition Act is to be made on the satisfaction of the “appropriate
Government”. Herein also, viewed with reference to the definition of the
term ‘appropriate Government’ in Section 3(ee) of the Acquisition Act, it
was submitted, that it was the Central Government alone whose
satisfaction was material, whereupon, the Central Government could
have issued the postulated declaration (contemplated under Section 6
of the Acquisition Act). Herein, according to the learned counsel,
20Page 21
admittedly the declaration was made on 13.1.1999 by the State
Government under Section 6 of the Acquisition Act. As such, it was
asserted that the same lacked any authority of law.
Fifthly, according to the learned counsel for the appellants, under
Section 7 of the Acquisition Act, after complying with the procedure
contemplated under Section 6, the “appropriate Government” (or some
officer authorized by the “appropriate Government”) is to direct the
Collector “to take order for the acquisition of the land”. The aforesaid
procedure contemplated under Section 7, according to learned counsel
for the appellants, has also been vested with the Central Government.
Insofar as the present acquisition proceedings are concerned, it was the
Central Government which had to direct the Collector to take
appropriate action contemplated under Section 7 of the Acquisition Act.
Since in the facts of the instant case, it is the Government of Rajasthan,
which had issued the aforesaid direction, according to learned counsel,
the same violates the mandate of Section 7 of the Acquisition Act.
Sixthly, learned counsel for the appellants placed reliance on the first
and the second provisos to the Section 11(1) of the Acquisition Act, in
order to contend, that while preparing the award with reference to the
acquired land, and while determining the true area of the acquired land,
and the compensation payable therefor, as also, the appropriation of
such compensation amongst persons interested, the power and
authority therefor, is vested in the Collector (with the previous approval
of the “appropriate Government”). Yet again, it was the contention of
21Page 22
the learned counsel for the appellants, that the provisos referred to
hereinabove, were bound to be appreciated with reference to the
definition of the term “Collector” in Section 3(c), and the term
‘appropriate Government’ under Section 3(ee) of the Acquisition Act. In
so doing, according to learned counsel, the inevitable result would be,
that the “appropriate Government” contemplated, is the Central
Government. And, accordingly, the Collector contemplated therein,
would be one nominated by the Central Government. It was pointed
out, that for the acquisition proceedings under reference, the approval
of the State Government, and not the Central Government was sought
by the Collector. It was further pointed out, that the concerned Collector
had been nominated by the State Government. For the aforesaid
reasons (principally on the same basis, as noticed in the foregoing
contentions), it was submitted, that the instant action of acquisition, was
in clear violation of the mandate of the provisions of the Acquisition Act.
According to learned counsel, all the above actions, had to be taken by
a Collector nominated by the Central Government, and upon the
previous approval of the Central Government. Since the position in the
facts and circumstance of the present case is not so, it was submitted,
that the instant process of acquisition, was in clear violation of the
mandate of the above-mentioned provisions of the Acquisition Act.
Seventhly, with reference to Sections 12, 13, 13A and 14, it was
submitted, that the term ‘Collector’ used therein, had to be viewed with
reference to Section 3(c) of the Acquisition Act, inasmuch as, the
Collector in the facts of the present case, had to be nominated by the
22Page 23
Central Government, and therefore, for the procedure contemplated by
the provisions referred to above, was required to be executed by a
Collector nominated by the Central Government. In the present case,
the State Government, by its order dated 19.8.1997 authorized the
SDO-II/Land Acquisition Collector, Jaipur, to carry out the functions
contemplated under Sections 12, 13, 13A and 14 of the Acquisition Act.
As such, according to learned counsel, the aforesaid procedure having
been carried out by a person having no authority to do so, must be
deemed to have been carried out without jurisdiction, and in violation of
the above mentioned provisions of the Acquisition Act.
Eighthly, the term ‘appropriate Government’ referred to in Sections 16,
17(1), 17(2), 31(3), 40, 41 and 49(2), according to the learned counsel,
could only have meant the Central Government, and not the State
Government. It was submitted, that in giving effect to the above
provisions, the Central Government had unquestionably remained out of
reckoning, and it was the Government of Rajasthan, which has
shouldered all the responsibilities contemplated under the said
provisions. For just the same reasons, as have been noticed above, it
was submitted that the scheme of the Acquisition Act very clearly
defines the manner in which the provisions thereunder, were to be given
effect to. Since the land was being acquired for the Railways, according
to learned counsel representing the appellants, the responsibilities
ought to have been shouldered by the Central Government, whereas,
the entire action for the acquisition of the land in the present
controversy, was dealt with by the State Government.
23Page 24
22. Having given our thoughtful consideration to the issue canvassed
at the hands of the learned counsel for the appellants, we are of the
view that it is necessary in the first instance to determine the subject of
legislative competence. If the determination of legislative competence
so determined falls in the realm of the Parliament, then the
contemplated appropriate Government would be the Central
Government. Whereas, if the legislative competence falls in the realm
of the State Legislatures, then the appropriate Government in the facts
and circumstances of the present case would be the State Government.
During the course of hearing, while examining the issue of legislative
competence, our attention was invited to entry 33 of the Union List,
entry 36 of the State List and entry 42 of the Concurrent List (of the
Seventh Schedule of the Constitution of India). All the aforesaid entries
are being extracted hereunder:
Entry 33 (in list I, of the Seventh Schedule)
“33. Acquisition or requisitioning of property for the purposes of
the Union.”
Entry 36 (in list II, of the Seventh Schedule)
“36. Acquisition or requisitioning of property, except for the
purposes of the Union, subject to the provisions of entry 42 of List
III.”
Entry 42 (in list III, of the Seventh Schedule)
“42. Acquisition and requisitioning of property.”
Before proceeding further, it would be relevant to point out that entries
33 and 36 (in lists I and II respectively, of the Seventh Schedule) were
omitted by the Constitution (Seventh Amendment) Act, 1956. And in
place of the above two entries, entry 42 (in list III, of the Seventh
24Page 25
Schedule) was substituted (through the same constitutional
amendment). Prior to above substitution, Entry 42 in List III read as
under:
Entry 42 (in list III, of the Seventh Schedule), prior to its substitution:
“42. Principles on which compensation for property acquired or
requisitioned for the purpose of the Union or of a State or for any
other public purpose is to be determined, and the form and the
manner in which such compensation is to be given.”
23. The scope and effect of aforesaid three entries, falling in three
different lists of the Seventh Schedule were examined by a Constitution
Bench of this Court in State of Bombay v. Ali Gulshan, AIR 1955 SC
810. The question posed, and the determination rendered thereon, are
being extracted hereunder:
“2. On the hearing of the petition before Tendolkar, J., the State
succeeded on the ground that the purpose for which the
requisition was made was a "public purpose" within the meaning
of the Act. But, on appeal, it was held that though the requisition
was for a public purpose, the requisition order was invalid, as the
public purpose must be either a purpose of the Union, or a
purpose of the State and in this particular case the
accommodation being required for housing a member of a foreign
Consular staff was a Union purpose, which was outside the scope
of the powers of the State.
xxx xxx xxx
5. The ultimate source of a authority to requisition or acquire
property is be found in article 31 of the Constitution. The
requisition or acquisition must be for a public purpose and there
must be compensation. This article applies with equal force to
Union legislation and State legislation. Items 33 and 36 of List I
and List II of the Seventh Schedule to the Constitution empower
respectively Parliament and the State Legislatures to enact laws
with respect to them.
6. The reasoning by which the learned appellate Judges of the
Bombay High Court reached their conclusion is shortly this. There
25Page 26
can be no public purpose, which is not a purpose of the Union or
a purpose of the State. There are only these two categories to
consider under the statute, as the words "any other purpose" in
the particular context should be read ejusdem generis with "the
purpose of the State". The provision of accommodation for a
member of the foreign consulate staff is a "purpose of the Union"
and not a "purpose of the State".
7. We are unable to uphold this view as regards both the
standpoints. Item 33 in the Union Legislative List (List I) refers to
"acquisition or requisitioning of property for the purposes of the
Union". Item 36 in the State List (List II) relates to "acquisition or
requisitioning of property, except for the purposes of the Union,
subject to the provisions of entry 42 of List III". Item 42 of the
Concurrent Legislative List (List III) speaks of "the purpose of the
Union or of a State or for any other public purpose".
Reading the three items together, it is fairly obvious that the
categories of "purpose" contemplated are three in number,
namely, Union purpose, State purpose, and any other public
purpose. Though every State purpose or Union purpose must be
a public purpose, it is easy to think of cases where the purpose of
the acquisition or requisition is neither the one nor the other but a
public purpose. Acquisition of sites for the building of hospitals or
educational institutions by private benefactors will be a public
purpose, though it will not strictly be a State or Union purpose.
When we speak of a State purpose or a Union purpose, we think
of duties and obligations cast on the State or the Union to do
particular things for the benefit of the public or a section of the
public. Cases where the State acquires or requisitions property to
facilitate the coming into existence of utilitarian institutions, or
schemes having public welfare at heart, will fall within the third
category above-mentioned.
8. With great respect, we are constrained to say that the ejusdem
generis rule of construction, which found favour in the court below
for reaching the result that the words "any other public purpose"
are restricted to a public purpose which is also a purpose of the
State, has scarcely any application. Apart from the fact that the
rule must be confined within narrow limits, and general or
comprehensive words should receive their full and natural
meaning unless they are clearly restrictive in their intendment, it is
requisite that there must be a distinct genus, which must
comprise more than one species, before the rule can be applied.
26Page 27
If the words "any other public purpose" in the Statute in question
have been used only to mean a State purpose, they would
become mere surplusage; Courts should lean against such a
construction as far as possible.
9. Even if it is conceded that the law contemplates only two
purposes, namely, State purpose and Union purpose, it is difficult
to see how finding accommodation for the staff of a foreign
consulate is a Union purpose and not a State purpose. Item 11 in
the Union list specifies "diplomatic, consular and trade
representation" as one of the subjects within the legislative
competence of Parliament, and under article 73 of the
Constitution, the executive power of the Union shall extend to all
such matters.
It can hardly be said that securing a room for a member of the
staff of a foreign consulate amounts to providing for consular
representation, and that therefore it is a purpose of the Union for
which the State cannot legislate. It was conceded by Mr. Rajinder
Narain, Counsel for the Respondent, that there is no duty cast
upon the Union to provide accommodation for the consulate staff,
and this must be so, when we remember that the routine duties of
a Consul in modern times are to protect the interests and promote
the commercial affairs of the State which he represents, and that
his powers, privileges and immunities are not analogous to those
of an ambassador.
The trade and commerce of the State which appoints him with the
State in which he is located are his primary concern. The State of
Bombay is primarily interested in its own trade and commerce
and in the efficient discharge of his duties by the foreign consul
functioning within the State. We are inclined to regard the
purpose for which the requisition was made in this case more as
a State purpose than as a Union purpose.
10. In any event, as already pointed out, "other public purpose" is
a distinct category for which the State of Bombay can legislate, as
the acquisition or requisitioning of property except for the
purposes of the Union, is within its competence under item 36 of
the State List.
11. There is another way of looking at the question involved. An
undertaking may have three different facets or aspects, and may
serve the purpose of a State, the purpose of the Union and a
general public purpose. Even if one may regard the requisition of
a room for the accommodation of a member of a Consulate as
27Page 28
one appertaining to a Union purpose, it does not necessarily
cease to be a State purpose or a general public purpose. In this
view also, the requisition in this case must be held to have been
validly made.”
(emphasis is ours)
In its determination with reference to public purpose (relatable to
acquisition proceedings), this Court in the judgment referred to
hereinabove, clearly held, that public purpose may be relatable to the
Central Government, alternatively, it may be relatable to the State
Government. Besides the aforesaid two alternatives, there is also a
third alternative, namely, a situation wherein the public purpose is a
general public purpose, which is neither exclusively relatable to the
Central Government and/or fully relatable to the State Government.
The third alternative, would be a situation, wherein the cause in
question furthers a common public purpose and is relatable both to a
Union and a State cause.
24. It would be relevant to mention, that the judgment rendered by
this Court in State of Bombay vs. Ali Gulshan (supra) was brought to our
notice by the learned counsel for the appellants. The purpose for doing
so, was to enable us to examine the matter in the correct perspective.
For this, learned counsel for the appellants pointed out, that the law
declared by the above judgment, came to be negated by the
Constitution (Seventh Amendment) Act, 1956, which repealed entries
33 and 36 (in lists I and II respectively, of the Seventh Schedule) and
substituted entry 42 (in list III, of the Seventh Schedule).
28Page 29
25. Before recording any final determination, we may now refer to the
judgments cited at the behest of the appellants. Reference was made
to the decision rendered by the Allahabad High Court in Balak & Ors. v.
State of Uttar Pradesh & Anr., AIR 1962 Allahabad 208. The facts in
the afore-cited judgment are almost similar to the controversy in hand.
From the cited judgment, our attention was drawn to the following
observations:
“6. Now I proceed to discuss the merits of the writ petition. The
main contention of Mr. S.C. Khare is that the acquisition
proceedings are for a Union purpose. It was not open to the State
Government to initiate the acquisition proceedings. The impugned
notifications mention that land is being acquired for construction
of staff quarters in connection with the North Eastern Railway
Head-quarters Scheme. This is a Union purpose. But it has been
urged for the opposite parties that, the State Government has
authority to acquire land for the benefit of the Union.
xxx xxx xxx
13. We have to consider whether the 1952 notification can be
considered to be an order by the President of India, although the
notification purports to have been issued by the Central
Government. Under Article 53 of the Constitution, the Executive
power of the Union shall be vested in the President and shall be
exercised by him either directly Or through officers subordinate to
him in accordance with the Constitution. According to Clause (1)
of Article 77 of the Constitution, all executive action of the
Government of India shall be expressed to be taken in the name
of the President. Under this Article, even if action is taken by the.
Central Government, the relevant order ought to be issued in the
name of the President. I do not find in the Constitution the
converse proposition. There is no provision to the effect that,
orders to be issued by the President might be issued in the name
of the Central Government. We have seen that under Clause (1)
of Article 258 of the Constitution, it is the President who can
delegate his functions to the State Government. There is nothing
in the Constitution to suggest that the Central Government may
act on behalf of the President for purposes of Article 258. It is true
that, under Article 74 of the Constitution, the President is aided by
a Council of Ministers. It was open to the Council of Ministers to
advise the President for issuing an order under Article 258 of the
Constitution. But ultimately the order had to be issued by the
29Page 30
President, or in the name of the President. In the instant case the
1952 notification was issued by the Central Government, and not
by the President. I agree with Mr. Khare that the notification dated
29-3-1952 is not a valid notification delegating powers under
Article 258 of the Constitution. The 1952 notification did not
empower the State Government to take action under the Act on
behalf of the Union Government. In the absence of any such
delegation of powers, action in the instant case ought to have
been taken by the appropriate Government (the Central
Government). It was not open to the State Government to issue
notifications under Sections 4 and 6 of the Act on behalf of the
Union Government. The two notifications dated 2-3-59 and 16-4-
59 with reference to the area of 113.78 acres are invalid. The
authorities have tried to dispossess the petitioners on the strength
of these notifications. The petitioners are entitled to be restored to
possession, in case the authorities have already dispossessed
the petitioners. Since the petition partly succeeds, the parties may
be directed to bear their own costs.
(emphasis is ours)
It was the vehement contention of the learned counsel for the
appellants, that the Allahabad High Court had interpreted the provisions
of the Acquisition Act, by appropriately referring to the relevant
provisions of the Constitution of India. Learned counsel accordingly
submitted, that the legal/constitutional inferences recorded in the cited
judgment would clearly demonstrate, that only the Central Government
had the jurisdiction, to issue the notification and declaration under
Sections 4 and 6 respectively of the Acquisition Act, in the case in hand.
(ii) Reference was also made to the paragraphs extracted below
from the decision rendered by the Bombay High Court in Ramdas
Thanu Dessai & Ors. v. State of Goa & Ors., 2009 (1) Mh.L.J. 241.
Herein also, the controversy before the High Court was similar to the
one in hand.
“5. As already seen above, once it is not in dispute that the
acquisition is for the South Western Railways for the purpose of
construction of railway line and cargo handling terminal at
30Page 31
Shelvona, and the entire acquisition cost would be borne by the
respondent Nos. 2 and 5, it obviously means that the acquisition
is for the Union and, therefore, such acquisition has to be by the
Central Government who is the appropriate Government for
initiating such action.
xxx xxx xxx
7. In our considered opinion, it is difficult to accept the
contention sought to be raised on behalf of the respondent Nos. 1
and 4. The section 4 of the said Act clearly requires the
appropriate Government to take initiative for commencement of
acquisition proceedings and section 3(ee) specifies as to who
would be the appropriate Government bearing in mind the
purpose for which the acquisition of land is contemplated. In the
case in hand, as already seen above, the acquisition of land
specified in the Schedule annexed to the notification is for the
purpose of construction of railway line and cargo handling
terminal for South Western Railway. The arguments on behalf of
the respondent Nos. 1 and 4 relates to the benefits which may
arise to the local residents out of construction of such railway line
and the terminal and not to the purpose for which the land is
sought to be acquired. The resultant benefits which the residents
of the affected area in Goa may enjoy is not the purpose for which
a particular land is sought to be acquired. If the argument on
behalf of the respondent Nos. 1 and 4 is to be accepted, then
even the land which is used for laying the railway line and which
undisputedly belong to the Union of India would fall in the
category of any other purpose. That is not the legislative intent
behind defining the term "appropriate Government" under section
3(ee).
8. The appropriate Government under section 4 read with
section 3(ee) is that Government which takes decision to acquire
the land for its purpose. In the case in hand, once it is not in
dispute that pursuant to the proposal by the State Government it
was the decision of the Union and its Department of Railways to
acquire a particular land for construction of the terminal to be
constructed and maintained by the respondent Nos. 2 and 5, it
cannot, in the same breath, be said that the acquisition is also for
any other purpose. The purpose of acquisition is clearly specified
in the notification. Once a particular purpose is specified in the
said notification, it cannot be sought to be stated by way of an
affidavit that the real purpose is something different from the one
disclosed in the notification nor such additional benefits which
may accrue on account of acquisition of land to the residents of
the locality could be said to be the purpose for which the land is
sought to be acquired.
31Page 32
9. It is to be borne in mind that after issuance of notification
under section 4, the interested parties are entitled to object to
such notification and in that regard the Collector is enjoined to
hear the objections and make a report to the appropriate
Government and after considering such reports, the appropriate
Government is required to take appropriate decision which should
culminate in the form of declaration under section 6. The sections
4, 5, 5A and 6 specifically refers to the appropriate Government
and its satisfaction for need to acquire the land. Once it is not in
dispute that the proposed acquisition of land is for the purpose of
railway terminal, to be built by the respondent Nos. 2 and 5 at
their own cost and to be maintained by them, and such terminal is
to be used for the activities in relation to the railways i.e., for
unloading of ore transported by the railways from Kamataka to
Goa, it cannot be said that the land is sought to be acquired for
any other purpose. It is to be held that the land is being sought to
be acquired for the Union purpose.
10. In spite of the fact that the land is sought to be acquired for
the Union, it is undisputed fact that the State Government claims
to be the appropriate Government in respect of the acquisition
proceedings in question. Obviously, it is without any authority to
be the appropriate Government for the purpose of such
acquisition. Therefore, the notification and the declaration are to
be held as bad in law.
xxx xxx xxx
12. When the statutory provisions comprised under sections 4
and 6 read with section 3(ee) of the said Act clearly provide that
in cases of acquisition for the purpose of Union, the appropriate
Government would be the Central Government, the exercise of
executive power cannot be allowed to transgress the said
statutory provisions comprised under the said Act. The petitioners
are justified in contending that the executive power is always
subservient to the legislative power. It is always subject to
legislative provision and has to yield to the legislative power.
Mere inclusion of the Entry No. 42 in the concurrent list, which
speaks of the principles on which compensation for the property
acquired and requisitioned for the purpose of the Union and the
State or for any other public purpose is to be determined and the
form and the manner in which such compensation is to be given,
by that itself would not empower the executive to act in
contravention of the provisions made in the Central Legislation. It
cannot be disputed that the said Act was enacted prior to the
independence of India. However, the same was adapted in terms
of the Adaptation Order of 1950 and, therefore, is a law made by
the Parliament within the meaning of the said expression under
the proviso to Article 162 of the Constitution of India.
32Page 33
xxx xxx xxx
18. It is thus clear that in spite of the fact that the acquisition of
the land is for the Union's purpose and at the cost of the Central
Government, the process of acquisition was sought to be initiated
by publication of notification under section 4 of the said Act by the
State Government claiming to be the appropriate Government. As
the law stands, the acquisition for the Union's purpose cannot be
initiated by the State Government unless there is specific
delegation of power in that regard and in the case in hand there
has been no such delegation. Hence, as rightly submitted on
behalf of the petitioners, the notification under section 4 and the
declaration under section 6 in relation to the land in question by
the State Government is bad in law and is liable to be struck
down.”
(emphasis is ours)
It was submitted by learned counsel for the appellants, that the issue
has been correctly adjudicated even by the Bombay High Court, and
that, this Court should endorse the same, while adjudicating the present
controversy.
(iii) Reliance was also placed on Messrs. Tinsukia Development
Corporation Ltd. v. State of Assam & Anr., AIR 1961 Assam 133,
wherein a Full Bench of the Assam High Court held as under :
“3. The submission made on behalf of the petitioner is that as
the land was needed for construction of the food-grains godown
by the Government of India the purpose was a Union purpose
and the Central Government was the appropriate Government. It
is not disputed that the two notifications under Sections 4 and 6
were issued on behalf of the State Government. From a perusal
of the notification under Section 6 it is also clear that it was the
State Government which was satisfied that the land was needed
for a public purpose before issuing a declaration under Section 6.
4. The contention on behalf of the State is two-fold in reply to
the argument of the counsel for the petitioner. Firstly it is urged
that merely because the land is needed for construction of a foodgrains godown by the Central Government, it does not
necessarily follow that the purpose is a Union purpose. The
maintenance of proper supply of food-grains to the inhabitants of
this State is as much the responsibility of the State Government
33Page 34
as that of the Central Government. The benefit by the
construction of the food-grains godown will be derived by the
public of this State and as such it is a public purpose and not a
purpose of the Union alone.”
It would be relevant to mention, that the submission advanced on behalf
of the acquiring Government, was akin to the “third alternative”
expressed by the Constitution Bench of this Court in State of Bombay
vs. Ali Gulshan (supra).
(iv) Reliance was also placed by the learned counsel for the
appellants, on Sudhansu Sekhar Maity & Ors. vs. State of West Bengal
& Ors., AIR 1972 Calcutta 320, and our attention was drawn to the
following:-
“9. In dealing with this point it should first be noted that after
the seventh amendment to the Constitution both entries 33 & 36
respectively of the Union list and the State list have now been
deleted and entry 42 of the concurrent List has been appropriately
amended to cover "acquisition and requisitioning of property". On
this amendment acquisition is on the concurrent list and both the
Union and the State are equally authorised to legislate on the
subject of acquisition irrespective of purpose of such acquisition
but subject to the usual limitations otherwise imposed by the
Constitution. Thus acquisition irrespective of whether it is for the
purpose of the State or the Union being within the legislative
competence of the State is also within its executive powers.
According to Baneriee. J. in the case of Gadadhar v. State of
West Bengal, (1963) 67 Cal WN 460 at p. 470, after such
amendment it is wholly inconsequential as to whether the
acquisition is made for a purpose of the Union or the State. To
quote his words:
"the disclosure that acquisition of land was being made for
a purpose which was not the purpose of the Union, in the
notification and the declaration, was possibly made under
the time worn idea that since the State could legislate in the
matter of land acquisition, for its own purpose only, every
land acquisition by the State must be justified on that
ground. After the Constitution Seventh Amendment Act,
1956 it was not necessary to make such a statement in the
notification or the declaration, even if it was at all so
necessary at a time when the Constitution had not been so
amended".
34Page 35
This statement of the principle by Banerjee, J. can be well
supported so long -- as is usually the case -- the State
Governments are duly authorised on delegation of powers by the
Union Government to acquire lands for a purpose of the Union.
Because in the absence of such delegated authority on the
statutory provisions of Sections 4 and 6 of the said Act read with
the definition of the term 'appropriate Government' in Section
3(ee). the power of acquisition would otherwise be limited to the
State Or the Union Government respectively for purposes of the
State or the Union.
10. Now in the present case it appears from the affidavit filed
by the respondents Nos. 1 to 4 that by an appropriate notification
dated May 14, 1955 issued under Article 258(1) of the
Constitution the State Government in West Bengal was duly
authorised by the Central Government to acquire land for the
purposes of the Union. This factum of delegation is not disputed.
If that is so, even if I assume that the purpose of the disputed
acquisition is a purpose of the Union it would still be within the
powers of the State Government to acquire and the acquisition
cannot be struck down as beyond the competence of the State
Government. Mr. Sinha, however, contends that in the present
case neither the notifications under Section 4 nor the declarations
under Section 6 invoke the delegated powers nor are the
notifications and declarations issued in appropriate forms. In my
view even if that be so, that would not vitiate the notifications or
declarations. It would be a mere irregularity not affecting the
substance which would not vitiate the acquisition. If the authority
has the power for any action taken, the act is competent and non
recital or wrong recital of the authority for the action would not
make the act incompetent or without jurisdiction. Reference may
be made to the decision of the Supreme Court in the case of
Lekhraj v. Dy. Custodian, Bombay, AIR 1966 SC 334.
11. That apart, in my view there is great substance in the
contention of Mr. Bose that simply because the acquisition is for
the purpose of setting up a subsidiary port, the purpose of the
acquisition does not necessarily become solely a purpose of the
Union. According to Mr. Bose it is a project which would not only
be highly beneficial to the general public in this State but would
serve public purposes in this State and as such the acquisition
would be well supported on the ground that it is for a public
purpose. It is clearly so when the acquisition is being made at the
expense of the local authority. Mr. Bose rightly relies on the
decision of the Supreme Court in the case of State of Bombay v.
Ali Gulshan, AIR 1955 SC 810, in contending that there is no
merit in the contention that merely because the purpose involves
establishment of a port it serves no public purpose other than a
purpose of the Union. In my view the following observations of the
Supreme Court are clearly instructive, "that there is another way
35Page 36
of looking at the question involved. An undertaking may have
three different facets or aspects, and may serve the purpose of a
State, the purpose of the Union and a general public purpose.
Even if one may regard the requisition of a room for the
accommodation of a member of a consulate as one appertaining
to a Union purpose, it does not necessarily cease to be a State
purpose or a general public purpose". Similar also was the view
taken by this Court in the case of (1963) 67 Cal WN 460 (supra).
Therefore, following the above view I must hold that when
establishment of a subsidiary port or a dock therein would
undoubtedly serve at least the general public purpose even if it
otherwise involves a purpose of the Union, it would not be beyond
the authority of the State Government to acquire lands in exercise
of its own powers and irrespective of the powers delegated by the
Union Government in this respect. In either view therefore this
objection of Mr. Sinha must be overruled.”
(emphasis is ours)
According to the learned counsel for the appellants, in the case in hand,
the purpose of acquisition was purely relatable to the Railways. And
the Railways being exclusively a Union subject (falling under entry 22 in
list I, of the Seventh Schedule), the process of acquisition must be
deemed to fall in the exclusive executive domain of the Union
Government.
26. The second contention advanced at the hands of the learned
counsel for the appellants was based on the constitutional right
available to the appellants, under Article 300A of the Constitution of
India (hereinafter referred to as the ‘Constitution’). Article 300A is being
extracted hereunder:-
“300A. Persons not to be deprived of property save by
authority of law – No person shall be deprived of his property
save by authority of law.”
Based on the aforesaid constitutional provision, it was emphatically
asserted on behalf of the appellants, that an individual could not be
36Page 37
deprived of his property except in accordance with law. It was
submitted, that even if the lands of the appellants were to be acquired
for a public purpose, the same could have been done only by following
the procedure established by law. In the absence of following the
prescribed procedure, the acquisition itself must be deemed to have
been made in violation of the constitutional rights vested in the
appellants under Article 300A of the Constitution.
27. In order to support the contention advanced at the hands of the
appellants (expressed in the foregoing paragraph), learned counsel for
the appellants placed reliance on a number of judgments rendered by
this Court. The same are being individually referred to below.
(i) First of all, reliance was placed on the decision rendered by this
Court in State of U.P. & Ors. vs. Manohar, (2005) 2 SCC 126. The
following observations recorded therein were highlighted, during the
course of hearing:-
“6. Having heard the learned counsel for the appellants, we
are satisfied that the case projected before the Court by the
appellants is utterly untenable and not worthy of emanating from
any State which professes the least regard to being a welfare
State. When we pointed out to the learned counsel that at this
stage at least, the State should be gracious enough to accept its
mistake and promptly pay the compensation to the respondent,
the State has taken an intractable attitude and persisted in
opposing what appears to be a just and reasonable claim of the
respondent.
7. Ours is a constitutional democracy and the rights available
to the citizens are declared by the Constitution. Although Article
19(1)(f) was deleted by the Forty-fourth Amendment to the
Constitution, Article 300A has been placed in the Constitution,
which reads as follows:
37Page 38
"300A. Persons not to be deprived of property save by
authority of law - No person shall be deprived of his
property save by authority of law."
8. This is a case where we find utter lack of legal authority for
deprivation of the respondent's property by the appellants who
are State authorities. In our view, this case was an eminently fit
one for exercising the writ jurisdiction of the High Court under
Article 226 of the Constitution. In our view, the High Court was
somewhat liberal in not imposing exemplary costs on the
appellants. We would have perhaps followed suit, but for the
intransigence displayed before us.”
(ii) Reliance was then placed on the decision rendered by this Court
in Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chennai &
Ors., (2005) 7 SCC 627. In order to expound the nature of rights vested
in the appellants under Article 300A of the Constitution, reliance was
placed on the following observations recorded therein :
“6. It is not in dispute that Section 5-A of the Act confers a
valuable right in favour of a person whose lands are sought to be
acquired. Having regard to the provisions contained in Article
300A of the Constitution of India, the State in exercise of its
power of “eminent domain” may interfere with the right of property
of a person by acquiring the same but the same must be for a
public purpose and reasonable compensation therefor must be
paid.
7. Indisputably, the definition of public purpose is of wide
amplitude and takes within its sweep the acquisition of land for a
corporation owned or controlled by the State, as envisaged under
sub-clause (iv) of Clause (f) of Section 3 of the Act. But the same
would not mean that the State is the sole judge therefore and no
judicial review shall lie. (See Jilubhai Nanbhai Khachar and vs.
State of Gujarat, 1995 Supp (1) SCC 596).
8. The conclusiveness contained in Section 6 of the Act
indisputably is attached to a need as also the purpose and in this
regard ordinarily, the jurisdiction of the court is limited but it is
equally true that when an opportunity of being heard has
expressly been conferred by a statute, the same must
scrupulously be complied with. For the said purpose, Sections 4,
5-A and 6 of the Act must be read conjointly. The court in a case,
where there has been total non-compliance or substantial noncompliance of the provisions of Section 5-A of the Act cannot fold
its hands and refuse to grant a relief to the writ petitioner. Sub-
38Page 39
section (3) of Section 6 of the Act renders a declaration to be a
conclusive evidence. But when the decision making process itself
is in question, the power of judicial review can he exercised by
the court in the event the order impugned suffers from well-known
principles, viz., illegality, irrationality and procedural impropriety.
Moreover, when a statutory authority exercises such enormous
power it must be done in a fair and reasonable manner.
9. It is trite that hearing given to a person must be an effective
one and not a mere formality. Formation of opinion as regard the
public purpose as also suitability thereof must be preceded by
application of mind as regards consideration of relevant factors
and rejection of irrelevant ones. The State in its decision making
process must not commit any misdirection in law. It is also not in
dispute that Section 5-A of the Act confers a valuable important
right and having regard to the provisions, contained in Article
300A of the Constitution of India has been held to be akin to a
fundamental right.”
(emphasis is ours)
(iii) In addition to the aforesaid, learned counsel for the appellants
placed reliance on Lachhman Dass vs. Jagat Ram & Ors., (2007) 10
SCC 448, and invited our attention to the following observations made
therein:-
“16. Despite such notice, the appellant was not impleaded as a
party. His right, therefore, to own and possess the suit land could
not have been taken away without giving him an opportunity of
hearing in a matter of this nature. To hold property is a
constitutional right in terms of Article 300A of the Constitution of
India. It is also a human right. Right to hold property, therefore,
cannot be taken away except in accordance with the provisions of
a statute. If a superior right to hold a property is claimed, the
procedures therefore must be complied with. The conditions
precedent therefore must be satisfied. Even otherwise, the right of
pre-emption is a very weak right, although it is a statutory right.
The Court, while granting a relief in favour of a pre-emptor, must
bear it in mind about the character of the right, vis-a-vis, the
constitutional and human right of the owner thereof.”
(emphasis is ours)
(iv) Finally learned counsel for the appellants, in order to contend,
that the acquisition made by the Government of Rajasthan, in the case
in hand, was not in conformity with the procedure prescribed by law,
39Page 40
placed reliance on Entertainment Network (India) Ltd. vs. Super
Cassette Industries Ltd. etc. etc., (2008) 13 SCC 30. From the instant
judgment, learned counsel placed reliance on the following
observations:-
“118. An owner of a copyright indisputably has a right akin to the
right of property. It is also a human right. Now, human rights have
started gaining a multifaceted approach. Property rights vis-a-vis
individuals are also incorporated within the “multiversity” of
human rights. As, for example, any claim of adverse possession
has to be read in consonance with human rights. The activist
approach of the European Court of Human Rights is quite visible
from the judgment of Beaulane Properties Ltd. vs. Palmer, 2005
EWHC 817(Ch.), and J.A. Pye (Oxford) Ltd. vs. Graham, (2002) 3
ALL ER 865.
119. This Court recognized need of incorporating the same
principle for invoking the rule of strict construction in such matters
in P.T. Munichikkanna Reddy vs. Revamma, AIR 2007 SC 1753,
stating:
Adverse possession is a right which comes into play not
just because someone loses his right to reclaim the
property out of continuous and wilful neglect but also on
account of possessor's positive intent to dispossess.
Intention to possess can not be substituted for intention to
dispossess. Mere possession for howsoever length of time
does not result in converting the permissible possession
into adverse possession.
120. Further, in Peter Smith vs. Kvaerner Cementation
Foundations Ltd., [2006] EWCA Civ 242, the Court allowed the
appellant to reopen the case despite a delay of four years as he
had been denied the right to which Article 6 of the European
Convention on Human Rights ("the Convention") entitled him - to
a fair hearing before an independent and impartial tribunal.
121. But the right of property is no longer a fundamental right. It
will be subject to reasonable restrictions. In terms of Article 300A
of the Constitution, it may be subject to the conditions laid down
therein, namely, it may be wholly or in part acquired in public
interest and on payment of reasonable compensation.”
(emphasis is ours)
40Page 41
Based on the judgments cited above, it was asserted by learned
counsel representing the appellants, that in the facts of this case, it
stood established, that even though the prescribed procedure, vested
the authority of acquisition, with the Union Government, it had
unauthorizedly been acquired by the State Government (of Rajasthan).
28. Viewed dispassionately, we are satisfied, that even the second
submission advanced by the learned counsel for the appellants, has
trappings of the first contention. To succeed on the basis of the second
contention, it is critical for the appellants to succeed on the first.
Therefore, if the appellants succeed to establish, that acquisition in the
present case, could only have been made by the Union Government,
they would simultaneously be able to establish, that they had been
deprived of their property in violation of Article 300A of the Constitution,
i.e., without following the procedure established by law.
29. The third contention advanced at the hands of the appellants was
based on Article 73 of the Constitution. It was submitted, that since
“Railways” is a union subject (referable to entry 22 in list I, of the
Seventh Schedule), only the Union Government, i.e., the Government of
India had executive powers to acquire the land for establishing a zonal
office complex and residential quarters for Railway staff for the North
Western Railway zone, at Jaipur, in the State of Rajasthan. Article 73 of
the Constitution is being extracted hereunder:-
“73. Extent of executive power of the Union - (1) Subject to the
provisions of this Constitution, the executive power of the Union
shall extend-
41Page 42
(a) To the matters with respect to which Parliament has
power to make laws; and
(b) To the exercise of such rights, authority and jurisdiction
as are exercisable by the Government of India by virtue of
any treaty or agreement:
Provided that the executive power referred to in sub-clause
(a) shall not, save as expressly provided in this Constitution
or in any law made by Parliament, extend in any State to
matters with respect to which the Legislature of the State
has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer
or authority of a State may, notwithstanding anything in this
article, continue to exercise in matters with respect to which
Parliament has power to make laws for that State such executive
power or functions as the State or officer or authority thereof
could exercise immediately before the commencement of this
Constitution.”
Based on Article 73 of the Constitution, it was the contention of the
learned counsel for the appellants, that “Railways” is a Union subject
(referable to entry 22 in list I, of the Seventh Schedule). It was
accordingly contended, that Parliament has the exclusive power to
make laws relatable to matters pertaining to the “Railways”. As such,
relying on Article 73, it was submitted, that only the Union Government
(the Government of India) could exercise executive power in matters
pertaining to the subject “Railways”. Having made a reference to the
notification dated 19.8.1997 (issued under Section 4 of the Acquisition
Act), and the declaration dated 13.1.1999 (issued under Section 6 of the
Acquisition Act) it was pointed out, that the land under reference was
acquired “… in the public interest for the purpose of Zonal office, North
Western Railway by Central Government (Railways Administration)…”.
It was accordingly submitted, that the matter under reference was
relatable to a subject with respect to which, only the Parliament had
42Page 43
power to make laws. Therefore, the executive power relatable to the
acquisition under reference, under the mandate of Article 73 of the
Constitution, could only have been exercised by the Central
Government. In this behalf it was sought to be emphasized, that all the
executive power in the instant process of acquisition, was exercised by
the Government of Rajasthan. It was accordingly submitted, that all the
orders issued by the State Government, including the notification dated
19.8.1997 and the declaration dated 13.1.1999, were without
jurisdiction, and as such, void being ultra vires of Article 73 of the
Constitution of India.
30. It was also pointed out by the learned counsel for the appellants,
that it is open to the President of India to delegate executive functions
vested in the Central Government to the State Government. In this
behalf, learned counsel for the appellants placed reliance on Article 258
of the Constitution. Article 258 of the Constitution, is being extracted
hereunder :
“258. Power of the Union to confer powers, etc, on States in
certain cases—(1) Notwithstanding anything in this Constitution,
the President may, with the consent of the Governor of a State,
entrust either conditionally or unconditionally to that Government
or to its officers functions in relation to any matter to which the
executive power of the Union extends
(2) A law made by Parliament which applies in any State may,
notwithstanding that it relates to a matter with respect to which
the Legislature of the State has no power to make laws, confer
powers and impose duties, or authorise the conferring of powers
and the imposition of duties, upon the State or officers and
authorities thereof
(3) Where by virtue of this article powers and duties have been
conferred or imposed upon a State or officers or authorities
thereof, there shall be paid by the Government of India to the
43Page 44
State such sum as may be agreed, or, in default of agreement, as
may be determined by an arbitrator appointed by the Chief
Justice of India, in respect of any extra costs of administration
incurred by the State in connection with the exercise of those
powers and duties.”
Based on Article 258 of the Constitution, it was the submission of the
learned counsel for the appellants, that the President of India in the
facts and circumstances of the instant case, cannot be stated to have
ever delegated the aforesaid executive functions of the Union, to the
Government of Rajasthan. The simple submission was, that no such
stance had been adopted either by the Union, or by the acquiring State
Government. Insofar as the instant aspect of the matter is concerned,
learned counsel for the appellants, placed reliance on Section 3(8)(b) of
the General Clauses Act, 1897. Section 3(8)(b) aforementioned is
extracted hereunder :
“3. Definitions.— In this Act, and in all Central Acts and
Regulations made after the commencement of this Act, unless
there is anything repugnant in the subject or context,-
(1) to (7) ...
(8) "Central Government" shall,--
(a) ...
(b) in relation to anything done or to be done after the
commencement of the Constitution, mean the President; and
shall include,--
(i) in relation to functions entrusted under clause (1) of
article 258 of the Constitution, to the Government of a
State, the State Government acting within the scope of the
authority given to it under that clause;
(ii) in relation to the administration of a Part C State before
the commencement of the Constitution (Seventh
Amendment) Act, 1956, the Chief Commissioner or the
Lieutenant-Governor or the Government of a neighbouring
44Page 45
State or other authority acting within the scope of the
authority given to him or it under article 239 or article 243 of
the Constitution, as the case may be; and
(iii) in relation to the administration of a Union territory, the
administrator thereof acting within the scope of the
authority given to him under article 239 of the Constitution.”
It was the submission of the learned counsel for the appellants, that the
onus rested on the Railways, and alternatively on the Government of
Rajasthan, to establish that the delegation of power for acquiring the
land under reference had actually been ordered by the President of
India. It was the submission of the learned counsel for the appellants,
that since no such delegation is shown to have been made by the
President of India, to the functionaries of the Government of Rajasthan,
it was natural to infer, that no such delegation was ever ordered. Since
as submitted by learned counsel, the instant executive function was
solely vested in the Central Government, therefore, it could not have
been executed on behalf of the Central Government by the Government
of Rajasthan. In the instant view of the matter, it was submitted, that the
concerned acquisition, by the State Government, was without any
authority/sanction of law.
31. In our considered view, even the third submission advanced by
the learned counsel for the appellants raises the same foundational
plea, as the first two contentions. In order to succeed on the third
contention it would be vital (as for the earlier two contentions) for the
appellants to establish, that the process of acquisition in this case, could
only have been carried out by the Union executive (i.e., the Government
of India), whereas, it had unauthorizedly been undertaken by the State
45Page 46
Government (i.e., the Government of Rajasthan). In view of the first
three submissions, therefore, we shall first of all endeavour to
determine, whether the instant acquisition of land, accomplished by the
State Government, is sustainable in law.
32. Having given our thoughtful consideration to the matter under
consideration, we are of the view, that reliance on entry 33 (of list I of
the Seventh Schedule), and on entry 36 (of list II of the Seventh
Schedule), and finally on entry 42 (of list III of the Seventh Schedule), is
only for the purpose of avoiding and getting around, the real issue.
Entries in list I, bring the listed subjects within the legislative
competence of the Parliament. Entries in list II demarcate subjects
falling within the legislative competence of the State Legislatures.
Entries in list III pertain to subjects on which joint legislative competence
is vested with the Parliament, as also, the State Legislatures. Needless
to mention, that the Constitution vests superiority in enactments made
by the Parliament, on subjects enumerated in list III, of the Seventh
Schedule (in case of conflict between the legislations enacted by the
Parliament and the State Legislatures). Statutory provisions enacted in
the manner expressed above, regulate, not only the substance of the
legislation, but also modulate the procedure to administer the substance
of the legislation.
33. Article 73 of the Constitution vests in the Central Government
executive power, the jurisdiction whereof is exactly the same as
jurisdiction vested in the Parliament to make laws. The executive power
46Page 47
of the Union, therefore, extends over the subjects on which the
Parliament has the power to legislate. Arising out of the executive
power referred to hereinabove, emerges one fundamental and
unambiguous understanding, namely, executive power vested in the
Central Government cannot be exercised in violation of the
constitutional provisions referred to above, or as may be ordained by
some express legislative enactment. The latter aspect (express
legislative enactment), emerges from the proviso under Article 73(1) of
the Constitution of India. Therefore, on a subject regulated by
legislation, executive power has to be exercised in consonance with the
enacted legislation.
34. It is in the background of the conclusions recorded in the
aforegoing two paragraphs, that we must understand the scope of
executive authority vested in the Central Government under Article 73 of
the Constitution. There is no dispute whatsoever, that the subject
matter under consideration is regulated by the Acquisition Act. As such,
the freedom of executive power vested in the Central Government must
be deemed to have been curtailed, so as to be exercised in consonance
with the provisions of the Acquisition Act. The preceding proposition is
the natural consequence of giving effect to the proviso under Article
73(1) of the Constitution of India. Since the vires of the provisions of the
Acquisition Act relied upon by the learned counsel for the appellants
have not been assailed, we are inclined to unhesitatingly hold that the
procedure contemplated under the Acquisition Act, is liable to be
followed in matters pertaining to governmental acquisitions, of private
47Page 48
land. In absence of compliance therewith, the process of acquisition
made thereunder, would be liable to be set aside. We are of the view,
that Sections 4 and 6 lay down mandatory procedural provisions, which
require to be followed in letter and spirit, in matters pertaining to
acquisition of private lands.
35. For the reasons recorded in the foregoing paragraphs, we are of
the view, that reliance on different entries in different lists of the Seventh
Schedule, at the behest of the learned counsel for the appellants, may
turn out to be wholly inconsequential, in so far as the present
controversy is concerned. It needs emphasis, that entries in different
lists, have been relied upon only to demarcate the executive domain.
To impress upon us, that the jurisdiction to acquire land in the facts of
the present case, fell within the exclusive domain of the Central
Government, in a very subtle manner, the submission has clearly
changed over to a wrong track. Herein the substance of law, as also,
the procedure regulating acquisition, flows out of the Acquisition Act.
The vires of the Acquisition Act is not under challenge. Therefore, the
Acquisition Act, which demarcates the jurisdictional areas between the
Union and the States will provide an answer to the issue of jurisdiction
canvassed, and not the entries in different lists of the Seventh Schedule
of the Constitution of India. More so, because the subject of acquisition
is now placed in list III of the Seventh Schedule of the Constitution of
India (in entry 42), and as such, the Parliament as also the State
Legislatures, have concurrent jurisdiction in respect thereof. As such, it
would be fully justified for Parliament (as it has done through the
48Page 49
Acquisition Act), to demonstrate the areas of jurisdiction. All the same,
we shall endeavour to record the submissions advanced on behalf of
the appellants.
36. While bringing to our notice entry 33 in list I, entry 36 in list II and
entry 42 in list III of the Seventh Schedule of the Constitution, it was
vehemently pointed out, by learned counsel for the appellants, that the
first two of the aforesaid entries came to be omitted by the Constitution
(Seventh Amendment) Act, 1956. Simultaneously, by the same
amendment, entry 42 was added to List III of the Seventh Schedule.
Learned counsel for the appellants therefore submitted, that the earlier
entry 33 of list I and entry 36 of list II of the Seventh Schedule must be
deemed to have been merged into entry 42 of list III of the Seventh
Schedule. It was accordingly the vehement contention of the learned
counsel for the appellants, that while determining legislative
competence (and the resultant executive jurisdiction) consequent upon
the merger of the aforesaid two entries into the freshly
amended/substituted entry 42 of list III, it was imperative to keep in mind
what the Parliament did away with, and the resultant effect emerging
from a collective interpretation of the above three entries, prior to the
Constitution (Seventh Amendment) Act, 1956. For the instant reason, it
was also sought to be suggested, that the judgment rendered by this
Court in State of Bombay v. Ali Gulshan (supra) would not constitute a
valid basis for determination of the present controversy. Learned
counsel, in this behalf also pointed out, that the judgment in the
49Page 50
aforesaid matter was rendered in 1955, i.e. before the Constitutional
Amendment in 1956.
37. We shall now endeavour to determine the effect of the
submissions advanced at the hands of the learned counsel. Through
entry 33 (in list I of the Seventh Schedule), the subject of acquisition of
property “... for the purposes of the Union...” was vested in the
legislative domain of the Parliament. And through entry 36 (in list II of
the Seventh Schedule), the subject of acquisition of property “... except
for the purposes of the Union...” was vested in the State Legislatures.
Having done away with the aforesaid entries from Lists I and II of the
Seventh Schedule, by the Constitution (Seventh Amendment) Act, 1956
(with effect from 1.11.1956), the legislative competence on the subject
of acquisition was jointly vested in the Parliament, as well as, the State
Legislature through entry 42 (in list III of the Seventh Schedule). Within
the scope of entry 42 (in list III of the Seventh Schedule), it was open to
the Parliament, as also, the State Legislature to enact legislation on the
subject of acquisition. It is, therefore apparent that the exclusive
jurisdiction vested in the State Legislature to enact legislation on the
subject of acquisition “...except for the purposes of the Union...” was
clearly taken away from the exclusive jurisdiction of the State legislation
by the aforestated amendment to the Constitution. In other words, prior
to the above amendment, State Legislature had the exclusive
jurisdiction to enact law for acquisition of private lands, falling within the
territorial jurisdiction of the concerned State. The said jurisdiction was
now concurrently shared with the Parliament. The said jurisdiction was
50Page 51
invoked by the Parliament when it enacted the Acquisition Act.
Therefore, in the ultimate analysis the submission advanced by the
learned counsel, would not serve the purpose of the appellants herein,
inasmuch as, it is not possible for us to read into entry 42 of list III of the
Seventh Schedule, the cumulative effect of entries 31 and 36 (of lists I
and II respectively of the Seventh Schedule). Hithertobefore, the
jurisdiction of Parliament (and consequently of the Union executive),
would extend only to acquisition of land/properties for purposes of the
Union. We are satisfied to hold, that consequent upon the Constitution
(Seventh Amendment) Act, 1956, the jurisdictional limitations on the
subject of acquisition would emerge from a valid legislation made under
entry 42 (in list III of the Seventh Schedule). Since the validity of the
Acquisition Act has not been assailed by the appellants, we shall accept
the same to be a valid legislation enacted under entry 42 (in list III of the
Seventh Schedule). We must, therefore, now endeavour to determine
the legitimacy of the submissions advanced at the hands of the learned
counsel for the appellants, on the jurisdictional question, purely on the
basis of the Acquisition Act.
38. In order to determine the validity of the submission advanced at
the hands of the learned counsel for the appellants, namely, that the
acquisition in the facts and circumstances of the present case, could
have been made only by the Central Government, and consequently,
the acquisition made by the Government of Rajasthan, was totally
without jurisdiction, would depend on the interpretation of Sections 4
and 6 of the Acquisition Act (read along with other provisions of the
51Page 52
Acquisition Act, relied upon by the learned counsel for the parties). In
this behalf, the submissions advanced on behalf of the appellants, have
already been recorded in paragraph 21 above.
39. From the deliberations recorded above, there is no room for any
dispute, that the interpretation of the term “appropriate Government”
referred to in Sections 4 and 6 of the Acquisition Act would lead to the
correct determination of the executive Government competent to
acquire the land under reference. Indubitably, the answer to the issue
would emerge from the definition of the term ‘appropriate Government’
in Section 3(ee) of the Acquisition Act, wherein, the expression
‘appropriate Government’ has been linked to the purpose of acquisition.
In such a contingency, the answer to the query, as to which of the two
Governments (Central Government, or the concerned State
Government) would satisfy the test of “appropriate Government”, one
will necessarily have to carefully view the real effect of the words
engaged to define the said term in Section 3(ee) of the Acquisition Act.
Section 3(ee) aforementioned is being extracted hereunder:
“3(ee) the expression "appropriate Government" means in relation
to acquisition of land for the purposes of the Union, the Central
Government, and, in relation to acquisition of land for any other
purposes, the State Government;”
A perusal of Section 3(ee) of the Acquisition Act, leaves no room for any
doubt, that the authority to acquire land has been divided between the
Central executive and the State executive. In situations where an
acquisition is entirely “…for the purposes of the Union…”. Section 3(ee)
aforementioned clearly postulates, that the Union executive would have
52Page 53
the exclusive jurisdiction to acquire the land. The terminology engaged
in Section 3(ee) of the Acquisition Act, for expressing the area of
jurisdiction of the State executive (in the matter of acquisition of land), is
not analogous or comparable with that engaged while spelling out the
jurisdiction of the Union executive. Section 3(ee), it may be noted, does
not express, that in matters of acquisition which are entirely for
purposes of a State, the jurisdiction would vest with the concerned State
executive. Noticeably, the words engaged to express the jurisdiction of
the State executive, are extremely wide, so as to accommodate all
acquisitions which are not entirely “for purposes of the Union”. This
intention of the legislature has been recorded by using the words “…in
relation to acquisition of land for any other purposes…” (i.e., other than
“… for the purpose of the Union…”), “…the State Government”.
40. Having had the benefit of understanding the different purposes for
which land may be acquired, from the Constitution Bench judgment of
this Court in State of Bombay vs. Ali Gulshan (supra), we would
unhesitatingly conclude, that the contemplated purposes would
definitely be “…three in number, namely, Union purpose, State purpose,
and “…a general public purpose…”. Our instant determination is based
on the fact, that an acquisition may not be exclusively for purposes
relatable to the Union, or entirely for purposes relatable to a State. The
complex and multifarious public activities which the executive has to
cater to may not fall in the exclusive domain of either the Union or the
State. In our view, causes with duality of purpose, would also fall in the
realm of the third purpose expressed by the Constitution Bench referred
53Page 54
to above as “…a general public purpose …”. Whenever the exclusive
Union or State barrier is transgressed, the purpose could be described
(as in State of Bombay vs. Ali Gulshan (supra)) as “…a general public
purpose…”. In case of the first contemplated purpose referred to
above, the Union executive would have the absolute and
unencumbered jurisdiction, as per the definition of the expression
“appropriate Government” in Section 3(ee) of the Acquisition Act. For
the remaining two purposes, the State executive would have
jurisdiction. Therefore, to determine the issue of jurisdiction in the
instant case, the first step essentially would be to determine the precise
purpose for which the instant acquisition was made. Based on such
conclusion, it would be easy to determine the vesting of executive
jurisdiction, for acquisition of the land under reference.
41. The instant issue can be examined from another perspective as
well. When examined closely, Section 3(ee) of the Acquisition Act, in
fact and in substance, incorporates the erstwhile entries 33 and 36
(from Lists I and II respectively, of the Seventh Schedule). For, it may
be recalled, that entry 33 (in List I of the Seventh Schedule), had vested
the subject of acquisition of property “... for the purposes of the Union...”
in the Parliament. Therefore, the executive domain thereof fell in the
realm of the Union/Central Government. Exactly in the same manner,
under Section 2(ee) of the Acquisition Act, for situations where
acquisition is exclusively “… for the purposes of the Union…” the Union
executive has been vested with absolute jurisdiction to acquire the land.
Likewise, jurisdiction for acquisition of land was vested in the State
54Page 55
legislature vide entry 36 (in List II of the Seventh Schedule). The
authority of the concerned State legislature extended to acquisitions of
land other than “... for the purposes of the Union...”. Therefore, the
executive domain of all acquisitions other than those for purposes of the
Union, fell in the realm of the concerned State Government. In exactly
the same manner Section 3(ee) of the Acquisition Act, for all the
residuary acquisitions, i.e. situations other than exclusively “…for the
purpose of the Union…”, have been vested in the realm of the
concerned State Government. This is exactly the same position which
was contemplated by the erstwhile entries 33 and 36 (from Lists I and II
respectively, of the Seventh Schedule). The scope and effect of the
erstwhile entries 33 and 36 was determined by a Constitution Bench of
this Court in State of Bombay vs. Ali Gulshan (supra), wherein this
Court concluded that the acquisition may serve three purposes i.e., the
purpose of the Union, the purpose of a State, and thirdly, “…a general
public purpose...”. Therefore, the logic, the course of thought, the
conclusions and the deductions made in the Constitution Bench
judgment aforementioned would completely and unqualifiedly be
applicable, while interpreting Section 3(ee) of the Acquisition Act. This
is for the simple reason, that the cause and effect of the aforesaid
entries (33 of List I, and 36 of List II) have been juxtaposed into the
definition of the term “appropriate Government” in Section 3(ee) of the
Acquisition Act. Therefore, it is only for the first of the three purposes
referred to hereinabove, wherein the term ‘appropriate Government’
would mean the Central Government. For the other two
55Page 56
exigencies/situations, the term ‘appropriate Government’ would mean
the concerned State Government.
42. We are of the view, that the determination on the first issue
canvassed at the hands of the learned counsel, would inevitably depend
on the purpose for which the land in question came to be acquired. If
the purpose of acquisition is exclusively for the Union, then the
Union/Central Government will have the exclusive jurisdiction to acquire
the land. If the purpose of acquisition is exclusively for a State, then the
concerned State Government will have the exclusive jurisdiction to
acquire the land. And if the purpose of acquisition is, “a general public
purpose” (i.e., a purpose which is neither exclusively relatable to the
Central Government and/or fully relatable to the State Government), yet
again, the concerned State Government will have the exclusive
jurisdiction to acquire the land.
43. We have already referred to a series of communications
exchanged between the Union Government, as also, the State
Government on the subject of the land required for establishing the
zonal office complex and residential quarters for Railway staff (for the
North-Western Railway Zone), at Jaipur. From the tenor thereof, we
shall venture to determine whether the land in question was being
acquired exclusively for the purposes of the Union, or exclusively for the
purpose of the State and/or for the third purpose identified above,
namely, to serve “…a general public purpose…”. For this, we shall first
refer to the letters exchanged between the concerned parties. The first
56Page 57
available communication on the record of the case dated 15.11.1996,
was addressed by the Officer on Special Duty, North-Western Railway,
to the Commissioner, Jaipur Development Authority, Jaipur, indicating
the availability of 26 bighas of Government land in front of the Getor
Jagatpura Railway Station. Even though the aforesaid letter mentions,
that the land in question had already been allotted to the Scouts &
Guides Organization, yet it was pointed out, that the same could
effectively be put to use for setting up the required infrastructure for the
North-Western Railway Zone. It was accordingly requested, that the
said land may be transferred to the Railways, at an early date. The
aforesaid letter leaves no room for any doubt, that what was being
sought through the communication dated 15.11.1996 was the transfer of
State Government land, to the Railways. The aforesaid position came
to be reiterated in another letter dated 15.11.1996. These two
communications were then followed by a letter dated 30.12.1996,
addressed by Mr. Ram Vilas Paswan, the then Union Minister for
Railways, to Mr. Bhairon Singh Shekhawat, the then Chief Minister of
the State of Rajasthan, indicating the Union Government’s desire to set
up the North-Western Railway Zone Complex, at Jaipur. Interestingly,
in the aforesaid letter the Railway’s request to the State Government
was to provide land “free of cost”. The basis of seeking the land free of
cost, also emerges from the said letter dated 30.12.1996, wherein it was
emphasized, that setting up of the Zonal Office would improve train
services to and within the State of Rajasthan, and would meet the
expectations of public and private entities in that area. In fact, the
57Page 58
emphasis in the aforesaid letter was, that such a gesture of the State
Government (to provide land free of cost) would go a long way in
enabling the Railways to make the Zonal Office functional, at an early
date. The instant emphasis makes out, that the State of Rajasthan (on
account of transportation facilities, which would become available to
public and private entities, having a nexus to the State) would benefit
therefrom. Consequent upon the receipt of the aforesaid
communication, the Commissioner, Jaipur Development Authority,
wrote a letter dated 28.2.1997 to the Secretary, Department of
Transport, Government of Rajasthan, for initiating acquisition
proceedings in respect of the land identified in villages Bindayaka and
Todi Ramjanipura in tehsil Sanganer of district Jaipur. The Deputy
Secretary, Department of Transport, Government of Rajasthan,
responded to the same vide a letter dated 29.3.1997, addressed to the
District Collector, Jaipur, for effectuating the desire expressed.
Pursuant to the aforesaid correspondence between the Railways and
the functionaries of the Government of Rajasthan, the State
Government issued a notification dated 19.8.1997 under Section 4 of
the Acquisition Act, depicting its intention to acquire land measuring 4-
39 hectares in the revenue estate of village Bindyaka, and 9-91
hectares in village Todi Ramjanipura, tehsil Sanganer, district Jaipur, to
establish the North-Western Railway Zone Complex.
44. The correspondence between the Railways and the Government
of Rajasthan preceding the notification under Section 4 of the
Acquisition Act, is the material correspondence on the basis whereof a
58Page 59
finding will have to be recorded, on the issue in hand, one way or the
other. The desire for transfer of land belonging to the State
Government, and thereafter, the desire to furnish land consequent upon
its acquisition “free of cost” to the Railways, leaves no room for any
doubt, that the Railways desired the State of Rajasthan to contribute
land, for the proposed project. Ordinarily this would be unthinkable,
except when the project would directly or indirectly benefit the State as
well. Ordinarily, the setting up of a Zonal Office would mean better
administration for the Railways establishment. It is difficult to
understand how, for the purpose of its own administration, the Railways
could repeatedly implore the Government of Rajasthan, in the first
instance to transfer land under State ownership to the Railways, and
thereafter, make an alternative request to the Government of Rajasthan,
to acquire land and to transfer the same to the Railways free of cost.
The only reason which one can infer for such an adjuration,
ascertainable from the letters referred to above is, that the residents of
the State of Rajasthan would also benefit from the establishment of the
said Zonal Office. This issue was impressed upon by the Railways, by
asserting that better transportation facilities would become available to
the public and private entities having a nexus to the State. And
therefore, the Railways considered it appropriate to involve the State
Government’s participation in the project, in the manner indicated
above. The letter addressed by the Union Minister of Railways dated
30.12.1996 is a clear pointer to the above inference. In the said letter,
the Union Minister for Railways particularly highlighted the fact that the
59Page 60
setting up of the North-Western Railways Zone Complex would improve
train services in Rajasthan, which in turn, would benefit the State of
Rajasthan. It is, therefore, that in the first instance, transfer of
Government land was sought by the Railways. When that did not
materialize, the Government was asked to acquire land, and provide it
free of cost to the Railways. From the above deliberations, we may
record our conclusions as follows. Setting up the North-Western
Railway Zonal Complex at Jaipur, would lead to better administration for
the Railways, and in that sense it would serve the purpose of the Union.
Additionally, it would improve train services in Rajasthan and would
accordingly meet the expectations of public and private entities of the
area. This would serve the purpose of the State. We would therefore
unhesitatingly record, that the situation in hand can be described as one
wherein the public purpose is “… a general public purpose…” which is
neither exclusively relatable to the Central Government and/or fully
relatable to the State Government.
45. In State of Bombay vs. Ali Gulshan (supra) accommodation was
required, for housing a staff member of a foreign Consulate in Bombay.
In the challenge raised, the primary contention was, that the subject
under reference was a Union purpose, and accordingly, the Union
Government alone had the jurisdiction in the matter. This submission
would naturally emerge from entry 11 (in List I, of the Seventh
Schedule), which reads, “Diplomatic, Consular and trade
representation”. The Bombay High Court, while accepting the challenge
had concluded, that there were only two categories for determining the
60Page 61
executive Government which had the jurisdiction to acquire land i.e., for
a Union purpose the Union/Central Government, and for the purpose of
the State, the concerned State Government. The High Court had
interpreted the words “any other purpose” by applying the rule of
ejusdem generis, as flowing out of the purpose of the State. The
Constitution Bench of this Court while determining the controversy, did
not accept the view of the High Court. This Court held, that categories
for the purpose of acquisition were three, namely, Union purpose, State
purpose, and “…a general public purpose…”. This was sought to be
explained by observing, that a State purpose or a Union purpose would
have a nexus to the duties and obligations cast on the State or the
Union, to do particular things for the benefit of the public or a section of
the public. Naturally these obligations would be determined on the
basis of the scheme of distribution of subjects between the Union and
the States in the Seventh Schedule of the Constitution of India. The
Union purpose, would constitute the first category. The second
category would be, for fulfilling a State purpose. Besides the aforesaid
clear demarcation, constituting the first two categories, situations where
a State acquires or requisitions property to facilitate the coming into
existence of allied objects having public welfare at heart, such like
situations would fall within the third category. The third category was
described as one which contemplated “…a general public purpose…”,
i.e., where the purpose is neither exclusively relatable to the Central
Government and/or fully relatable to the State Government. In State of
Bombay vs. Ali Gulshan (supra) it came to be held, that the
61Page 62
acquisition/requisition under reference therein, fell in the third category.
The consideration and logic leading to the aforesaid determination was,
that trade and commerce is the primary cause of the State which
appoints foreign Consulate staff, to the State (in the cited case, the
State of Bombay) where he is appointed. The purpose for
acquisition/requisition, was accepted as trade and commerce. As such,
it was concluded, that the State Government had the jurisdiction to
acquire/requisition the land. In the aforesaid understanding of the
matter, it is evident that the situation in hand is one akin to the one
referred to above where the purpose of acquisition partly falls in the first
category i.e., for the benefit of the Union, and partly, falls in the third
category i.e., “…a general public purpose. Just like in State of Bombay
vs. Ali Gulshan (supra), and for exactly the same reasons, we have no
hesitation in concluding, that in the present case as well, the purpose of
acquisition would benefit the State generally, as better transportation
facilities would meet the expectations of public and private entities
having a nexus with the State of Rajasthan. The purpose of the
acquisition in hand not being an exclusive Union purpose, and further
because, the purpose for acquisition can certainly be described as “…a
general public purpose…”, the State executive would definitely have the
jurisdiction to acquire the land under reference.
46. The submission advanced on behalf of the appellants, against the
conclusion drawn above was, that the judgment rendered in State of
Bombay vs. Ali Gulshan (supra) could not be applied after the
Constitution (Seventh Amendment) Act, 1956. It was contended that,
62Page 63
the basis on which the above judgment was rendered no longer exists,
and as such, the same has lost all its relevance. We have already
examined this aspect of the matter. We have concluded that Section
2(ee) of the Acquisition Act, reintroduces the three categories under
which jurisdiction for acquiring land has to be determined. The same
three categories of public purpose, which were deduced from entries 33
and 36 (in lists I and II, respectively of the Seventh Schedule) in State of
Bombay vs. Ali Gulshan (supra), also emerge out of an analysis of
Section 2(ee) of the Acquisition Act. It is therefore not possible for us to
accept, that the Constitution Bench judgment in State of Bombay vs. Ali
Gulshan has lost its relevance. Accordingly, we find no merit in the
instant objection raised on behalf of the appellants. For the above
reason, it is not possible for us to accept the first contention advanced
at the hands of the learned counsel for the appellants. We hereby
affirm, that the State Government had the jurisdiction to acquire the land
under reference, because it duly satisfied the requirement of the term
‘appropriate Government’ referred to in Sections 4 and 6 of the
Acquisition Act.
47. The second contention advanced at the hands of the learned
counsel for the appellants was based on the Constitutional right
available to the appellants under Article 300A of the Constitution. The
contention advanced at the hands of the learned counsel for the
appellants in this behalf was, that the Government of Rajasthan had no
jurisdiction to acquire the land in question. Consequently it was
contended, that the procedure prescribed by law had not been adhered
63Page 64
to. It was asserted that the Central Government alone could have
acquired the land in question, since the same was acquired for a
purpose which falls in the domain of the Union (the Railways).
48. It was not the contention of the learned counsel for the appellants
before this Court, that there had been any other procedural lapse
besides the one indicated above. It was not the case of the appellants,
that the notifications and declaration contemplated under the provisions
of the Acquisition Act were not duly issued. It was also not the case of
the appellants, that the land losers were not afforded an opportunity to
file objections. Nor was it the case of the appellants, that the objections
were not duly considered. No lapse whatsoever had been pointed out
depicting any irregularity at the hands of the appropriate authority, either
in terms of taking possession of the acquired land, or in terms of
determination of the compensation payable. It is, therefore, apparent
that in the process of acquisition, no procedural lapse has been pointed
out. The only illegality pleaded and canvassed for the annulment of the
acquisition proceedings was, that the term ‘appropriate Government’
used in Sections 4 and 6 of the Acquisition Act was wrongly assumed,
as the Government of Rajasthan. It was submitted, that it ought to have
been the Union/Central Government. In the determination rendered by
us, in respect of the first contention canvassed on behalf of the
appellants, we have already concluded, that in the facts and
circumstances of this case, reference to the term ‘appropriate
Government’ in Sections 4 and 6 of the Acquisition Act was rightfully
relatable to the Government of Rajasthan. Based on the above
64Page 65
conclusion drawn by us, there can be no further room for the appellants
to contend, that the instant acquisition process, was not in accordance
with law. In the aforesaid view of the matter, we have no hesitation in
affirming that while acquiring the land of the appellants, the Government
of Rajasthan, has proceeded in due course of law. As such, the
appellants cannot be stated to have been deprived of their
lands/property, without the authority of law. Accordingly, it is not
possible for us to accept even the second contention advanced at the
hands of the learned counsel for the appellants, namely, that the
acquisition of the appellants’ land has violated the appellants’
Constitutional right under Article 300A of the Constitution of India.
49. We shall now advert to the third contention advanced at the
hands of the learned counsel for the appellants. It was the pointed
submission of the learned counsel for the appellants, that the Central
Government alone had jurisdiction in the matter of acquisition of land for
the Railways. Undoubtedly, the acquisition of the land in the facts and
circumstances of the present case was for establishing the NorthWestern Railway Zone Complex. Despite the aforesaid, we have
already concluded hereinabove, that on the subject of acquisition, the
only relevant entry in the Seventh Schedule of the Constitution was
entry 42 in list III, i.e., the Concurrent List. Besides the aforesaid, no
other entry can legitimately be referred to, wherein the acquisition of
land (even though for the Railways) is the pointed subject of
consideration. There was no challenge to any of the provisions of the
Acquisition Act. We have already drawn our conclusions on the basis of
65Page 66
the provisions of the Acquisition Act, framed by the Parliament under
entry 42 (in list III, of the Seventh Schedule). We have interpreted the
relevant provisions of the Acquisition Act, and on the basis thereof have
been persuaded to conclude, that the Government of Rajasthan was the
competent authority for acquiring the land under reference. In such
view of the matter, reliance on Articles 73 or 258 of the Constitution of
India, by the learned counsel for the appellants, was clearly
misconceived. The answer to the third contention, therefore, clearly
emerges from the conclusions drawn by us on the basis of the first
contention advanced at the hands of the learned counsel for the
appellants. For the above reasons, we find no merit even in the third
contention advanced on behalf of the appellants.
50. We shall now deal with the fourth issue canvassed at the hands
of the learned counsel for the appellants. The instant issue is
unconnected with the previous issues. From the sequence of facts
narrated hereinabove, it is apparent that the instant acquisition of land
was at the behest of the Railways, i.e., the Union Government. It was
pointed out, that on all administrative issues, the functioning of the
Central Government is regulated by Rules of Business. In this behalf,
our attention was invited to the Government of India (Allocation of
Business) Rules, 1961 and the Government of India (Transaction of
Business) Rules, 1961. It was the contention of the learned counsel for
the appellants, that the aforestated Rules of Business (framed under
Article 77 of the Constitution of India) have a binding and mandatory
effect. Breach of the Rules of Business, according to the learned
66Page 67
counsel for the appellants, would result in vitiation of the entire action.
Insofar as the instant case is concerned, it was sought to be canvassed,
that the Union of India had breached the Rules of Business. And the
said breach, would vitiate the impugned acquisition proceedings. In
order to make good the aforesaid submission, learned counsel for the
appellants, invited our attention to Rules 3 and 4 of the Government of
India (Transaction of Business) Rules, 1961. Rules 3 and 4
aforementioned are being extracted hereunder :
“3. Disposal of Business by Ministries.- Subject to the provisions of
these Rules in regard to consultation with other departments and
submission of cases to the Prime Minister, the Cabinet and its Committees
and the President, all business allotted to a department under the
Government of India (Allocation of Business) Rules, 1961, shall be
disposed of by, or under the general or special directions of, the
Minister-in-charge.
4. Inter-Departmental Consultations.- (1) When the subject of a case
concerns more than one department, no decision be taken or order
issued until all such departments have concurred, or, failing such
concurrence, a decision thereon has been taken by or under the
authority of the Cabinet.
Explanation- Every case in which a decision, if taken in one Department,
is likely to affect the transaction of business allotted to
another department, shall be deemed to be a case the
subject of which concerns more than one department.
(2) Unless the case is fully covered by powers to sanction
expenditure or to appropriate or re-appropriate funds,
conferred by any general or special orders made by the
Ministry of Finance, no department shall, without the
previous concurrence of the Ministry of Finance, issue any
orders which may-
(a) involve any abandonment of revenue or involve any
expenditure for which no provision has been made in
the appropriation act;
67Page 68
(b) involve any grant of land or assignment of revenue or
concession, grant, lease or licence of mineral or forest
rights or a right to water power or any easement or
privilege in respect of such concession;
(c) relate to the number or grade of posts, or to the strength
of a service, or to the pay or allowances of Government
servants or to any other conditions of their service
having financial implications; or
(d) otherwise have a financial bearing whether involving
expenditure or not;
Provided that no orders of the nature specified in clause (c) shall be
issued in respect of the Ministry of Finance without the previous
concurrence of the Department of Personnel and Training.
(3) The Ministry of Law shall be consulted on-
(a) proposals for legislation;
(b) the making of rules and orders of a general character in
the exercise of a statutory power conferred on the
Government; and
(c) the preparation of important contracts to be entered into
by the Government.
(4) Unless the case is fully covered by a decision or advice
previously given by the Department of Personnel and
Training that Department shall be consulted on all
matters involving-
(a) the determination of the methods of recruitment
and conditions of service of general application to
Government servants in civil employment; and
(b) the interpretation of the existing orders of general
application relating to such recruitment or conditions of
service.
(5) Unless the case is fully covered by the instructions issued or
advice given by that Ministry, the Ministry of External
Affairs shall be consulted on all matters affecting
India's external relations.”
It was pointed out on the basis of the aforesaid Rules, that if the subject
under consideration pertained to business of a singular department, the
68Page 69
determination thereof would be rendered “... under the general or
special directions of the Minister in-charge...”. As against the aforesaid,
it was pointed out, that in situations where the subject concerned
related to more than one department, no final decision could be taken,
and no final order could be passed, unless all the concerned
departments were agreeable to the contemplated action. It was,
however, pointed out, that in case of non-concurrence of one or the
other department, a final decision could still be taken, and a final order
could still be passed, but only in consonance with the determination of
the Cabinet.
51. Insofar as the present controversy is concerned, it was the
vehement contention of the learned counsel for the appellants, that the
administrative ministry relevant for the setting up of the North-Western
Railway Zonal Headquarter at Jaipur was the Ministry of Railways,
whereas, the Department of Land Resources was the concerned
department to deal with the matters pertaining to acquisition of land for
purposes of the Union. Insofar as the instant aspect of the matter is
concerned, learned counsel invited our attention to the Second
Schedule under the Government of India (Allocation of Business) Rules,
1961. Therein, under the Head ‘B’, the Department of Land Resources
has been vested with the subject of administration of the provisions of
the Acquisition Act, and matters relating to acquisition of land for
purposes of the Union. It was the pointed submission of the learned
counsel for the appellants, that there was no material on the record of
the case to indicate, that in the instant acquisition proceedings, the
69Page 70
concurrence of the Department of Land Resources was obtained. As
such, it was submitted, that the instant acquisition of land for the
Railways was liable to be set aside.
52. In order to further his contention that the Rules of Business have
a binding and mandatory character, learned counsel for the appellants
placed reliance on a decision rendered by this Court in MRF Limited etc.
vs. Manohar Parrikar & Ors., (2010) 11 SCC 374. Our attention was
invited to the following observations recorded therein :
“107. Thus from the foregoing, it is clear that a decision to be the
decision of the Government must satisfy the requirements of the
Business Rules framed by the State Government under the
provisions of Article 166(3) of the Constitution of India. In the case
on hand, as have been noticed by us and the High Court, the
decisions leading to the notifications do not comply with the
requirements of Business Rules framed by the Government of
Goa under the provisions of Article 166(3) of the Constitution and
the Notifications are the result of the decision taken by the Power
Minister at his level. The decision of the individual Minister cannot
be treated as the decision of the State Government and the
Notifications issued as a result of the decision of the individual
Minister which are in violation of the Business Rules are void ab
initio and all actions consequent thereto are null and void.
108. The appellants contended before this Court that another
Division Bench of the High Court in its earlier judgment of
21.1.1999 had held that the Notification dated 1.8.1996 was
clarificatory and that it did not create any extra financial liability on
the State Government requiring approval of the Cabinet in
compliance with the Business Rules before it was brought into
force. In our opinion the said Notification cannot be treated as
mere c1arificatory. It is a notification issued purportedly in terms
of a Government decision. It was a decision finalized at the level
of the Minister of Power alone and was taken in violation of the
Rules of Business framed under Article 166(3) of the Constitution
of India. The decision cannot be called a government decision as
understood under Article 154 of the Constitution, though it may
70Page 71
satisfy the requirements of authentication. Nevertheless mere
authentication as required under Article 166(2) of the Constitution
did not make it a government decision in law nor would it validate
a decision which is void ab initio. The validity of the notification
will have to be tested with reference to the constitutional
provisions and Business rules and not by their form or substance.
therefore, this contention of the appellants is liable to be rejected.”
No doubt, this Court in MRF Limited’s case (supra) has made a passing
reference to the effect, that violation of Rules of Business would render
all actions taken as void ab initio. In other words, breach of the Rules of
Business would render the entire action null and void.
53. We have duly considered the fourth submission advanced by the
learned counsel for the appellant. The aforesaid determination in MRF
Limited’s case (supra), has been rendered without examining the said
proposition with reference to Article 77 of the Constitution, as also, any
other legislative enactment. We would, therefore, refrain from pointedly
examining the issue (in a manner as would constitute our conclusion a
ratio decidendi on the said subject) since we are of the view, that the
same does not arise for consideration in the facts and circumstances of
this case. The acquisition in the present controversy was made by the
Government of Rajasthan, and therefore, there was hardly any
justification for the consultation of the Department of Land Resources of
the Government of India. It is only if the acquisition had been made by
the Railways, the question of consultation with the Department of Land
Resources would have arisen. In our view, reliance on the provisions of
the Government of India (Allocation of Business) Rules, 1961 and/or the
Government of India (Transaction of Business) Rules, 1961 in order to
71Page 72
assail the acquisition made in the facts and circumstances of the
present case by the Government of Rajasthan, is wholly misconceived.
54. The next contention, serially the fifth contention advanced at the
behest of the appellants was, that the choice of the appellants’ land for
acquisition was vitiated by fraud, and as such, was liable to be set
aside. In this behalf, the contention advanced at the hands of the
learned counsel for the appellants was, that the action of acquisition
would have been legitimate, if the Government of Rajasthan had
acquired one block of land for setting up of the North-Western Railway
Zone Complex. It was submitted, that the acquisition in question for the
purpose of establishing the Zonal Headquarter and staff quarters for
North-Western Railways is in two blocks. In this behalf, it is pointed out,
that there was motive and extraneous consideration in leaving out of
acquisition, the land between the two blocks. It was submitted, that the
left out land (between the two blocks acquired) was owned by highly
placed bureaucrats and police officers. It was also submitted, that the
action of acquiring the appellants’ land by consciously leaving out land
in the ownership of highly placed influential persons would also be hit by
Articles 14 and 15 of the Constitution of India. According to the learned
counsel, the impugned acquisition process was also liable to be
described as arbitrary and discriminatory.
(i) On the issue of mala fides and fraud, learned counsel for the
appellants placed reliance on the decision rendered in Pratap Singh vs.
State of Punjab, (1964) 4 SCR 733 wherein this Court held as under :
72Page 73
“8. Doubtless, he who seeks to invalidate or nullify any act or
order must establish the charge of bad faith, an abuse or a
misuse by Government of its powers. While the indirect motive or
purpose, or bad faith or personal ill-will is not to be held
established except on clear proof thereof, it is obviously difficult to
establish the state of a man's mind, for that it what the appellant
has to establish in this case, though this may sometimes be done
(See Edgington v. Fitzmaurice [1855] 29 C.D. 459.. The difficulty
is not lessened when one has to establish that a person in the
position of a minister apparently acting on the legitimate exercise
of power has, in fact, been acting mala fide in the sense of
pursuing an illegitimate aim. We must, however, demur to the
suggestion that mala fide in the sense of improper motive should
be established only by direct evidence that is that it must be
discernible from the order impugned or must be shown from the
notings in the file which preceded the order. If bad faith would
vitiate the order, the same can, in our opinion, be deduced as a
reasonable and inescapable inference from proved facts.”
(ii) On the subject of classification and equality, learned counsel for
the appellants placed reliance on Col. A.S. Iyer vs. V.
Balasubramanyam, (1980) 1 SCC 634, and invited our attention to the
following conclusions drawn therein :
“57. Sri Govindan Nair, with assertive argument, gave us anxious
moments when he pleaded for minimum justice to the civilian
elements. He said that the impugned rules were so designed, or
did so result in the working, that all civilians, recruit or promotee,
who came in with equal expectations like his military analogue,
would be so outwitted at all higher levels that promotions, even in
long official careers would be hopes that sour into dupes and
promises that wither away as teasing illusions. In effect, even if
not in intent, if a rule produces indefensible disparities, whatever
the specious reasons for engrafting service weightage of the army
recruits, we may have had to diagnose the malady of such
frustrating inequality. After all, civilian entrants are not expendable
commodities, especially when considerable civil developmental
undertakings sustain the size of the service. And their
contentment through promotional avenues is a relevant factor.
The Survey of India is not a civil service 'sold' to the military,
stampeded by war psychosis. Nor does the philosophy of Article
14 or Article 16 con-, template de jure classification and de facto
easteification in public services based on some meretricious or
73Page 74
plausible differentiation, 'Constitutional legalistics can never
drown the fundamental theses that, as the thrust of Thomas's
case State of Kerala v. N.M. (1976) I LLJ 376 SC and the tailpiece of Triloki Nath Khosa's case State of J & K v. Triloki Nath
khoa (1974) I LLJ 121 SC bring out, equality clauses in our
constitutional ethic have an equalising message and egalitarian
meaning which cannot be subverted' by discovering classification
between groups and perpetuating the inferior-superior complex by
a neo-doctrine. Judges may interpret, even make viable, but not
whittle down or undo the essence of the Article. This tendency, in
an elitist society with a dischard casts mentality, is a disservice to
our founding faith, even if judicially sanctified. Subba Rao J. hit
the nail on the head when he cautioned in Lachhman Das v. State
of Punjab [1963] 2 SCR 353 :
‘The doctrine of classification is only a subsidiary rule
evolved by courts to give a practical content to the said
doctrine. Overemphasis on the doctrine of classification or
an anxious and sustained attempt to discover some basic
for classification may gradually and imperceptibly deprive
the Article of its glorious content. That process would
inevitably end in substituting the doctrine of classification
for the doctrine of equality; the fundamental right to equality
before the law and the equal protection of the laws may be
replaced by the doctrine of classification.’
The quintessence of the constitutional code of equality is brought
out also by Bose, J. in Bidi Supply Co. case Bidi Supply Co. v.
The Union of India and Ors. [1956] 29 ITR 717 (SC) .
The truth is that it is impossible to be precise, for we are dealing,
with intangibles and though the results are clear it is impossible to
pin the thought down to any precise analysis. Article 14 sets out,
to my mind, an attitude of mind, -a way of life, rather than a
precise rule of law. It embodies a general awareness in the
consciousness of the people at large of. something that exists
and which is very real but which cannot be pinned down to any
precise analysis of fact save to say in a given case that it falls this
side of the line or that, and because of that decisions on the same
point will vary as conditions vary, one conclusion in one part of
the country and another somewhere else; one decision today and
another tomorrow when the basis of society has altered and the
structure of current social thinking is different. It is not the law that
alters but the changing conditions of the times and Article 14
narrows down to a question of fact which must be (determined by
the highest Judges in the land as each case arises.”
(iii) In continuation of the aforesaid, learned counsel also placed
reliance on E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3;
74Page 75
Menaka Gandhi v. Union of India, (1978) 1 SCC 248; Ramana Dayaram
Shetty vs. International Airport Authority of India, (1979) 3 SCC 489;
and Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.
55. We have examined the last contention advanced at the hands of
the learned counsel for the appellants. The instant contention is based
on a factual assertions, namely, that the Government of Rajasthan
acted arbitrarily and in a discriminatory fashion, by deliberately and
intentionally leaving out of the acquisition process, land belonging to
highly placed influential persons. Before venturing to examine the
instant contention advanced at the behest of the appellants, it is
necessary to determine, whether the factual position, at the time of
acquisition was, as is being alleged by the appellants. Unfortunately,
our determination on the instant aspect of the matter is contrary to the
assertions advanced at the hands of the appellants. Insofar as the
instant aspect of the matter is concerned, reference may be made to
paragraph 11 of the counter affidavit filed on behalf of the State of
Rajasthan, wherein, it was asserted as under :
“It would be relevant to mention that the argument raised about
certain lands of IAS & IPA officials being selectively left-out is
without any substance. This argument would only suffice if the
land belonging to the IAS/IPS officials on the date on of
acquisition. This is apart from the fact that certain lands would be
left out in acquisition proceedings. It is relevant to mention that
no land belongs to any IAS/IPS official on the date of acquisition
and any subsequent purchase would not invalidate the acquisition
proceedings. Thus, the finding on this aspect does not suffer
from any legal infirmity.”
The aforesaid factual position has not been denied on behalf of the
appellants before this Court. Thus viewed, it is apparent that the land
75Page 76
which was left out, and which falls between the two blocks of land
acquired, cannot be stated to have been owned by influential
bureaucrats or police officers, at the time when the acquisition in
question was made. In the aforesaid view of the matter, it is not
possible for us to conclude, that the leaving out the land between the
two blocks of acquired land, and further that, the choice of acquisition of
the appellants’ land to the exclusion of the land left out of acquisition,
was vitiated for reasons of fraud, mala fides, arbitrariness or
discrimination. For the reasons recorded hereinabove, we find no merit
even in the last contention advanced at the hands of the learned
counsel for the appellants.
56. It is necessary to record herein that the challenge raised at the
behest of the appellants, to the acquisition of land made by the
Government of Rajasthan, for the Railways, was vehemently opposed
by the official respondents for a variety of reasons.
More particularly on
the grounds of delay and latches, as also, locus standi of the appellants
to assail the acquisition proceedings. Had we dealt with the objections
raised by the respondents and found merit therewith, it may not have
been necessary for us to examine the merits of the claim raised by the
appellants before us.
We may acknowledge, that at the first blush, the
objections raised by the official respondents did not seem to be bereft of
merit. Yet, since the issues canvassed at the hands of the learned
counsel for the appellants raised important issues of law, we considered
it just and appropriate to deal with them in order to settle the legal
proposition canvassed. Having recorded our conclusions on the issues
76Page 77
canvassed before us, we are of the view, that it is no longer necessary
for us to deal with the objections/submissions canvassed on behalf of
the official respondents.
57. For the reasons recorded hereinabove, we find no merit in these
appeals. The same are accordingly dismissed.
………………………….J.
(P. Sathasivam)
………………………….J.
(Jagdish Singh Khehar)
New Delhi;
July 1, 2013.
77
