PETITIONER: KESHAV DEO & ANR Vs. RESPONDENT: STATE OF U.P. & ORS. DATE OF JUDGMENT: 16/10/1998 BENCH: <NAME>, M. Srinivasan, JUDGMENT:

<NAME>

The first appellant was appointed as an Overseer (re-designated as Junior Engineer) on adhoc basis in <ORG> (for short P.W.D), State of U.P. on 17.7.1973. The second appellant was directly appointed as overseer substantively in the said department through the <ORG> on the same day. Both the appellants were holders of Diploma in Civil Engineering. In May, 1978 they passed an examination known as Associate Member of <ORG> (India), Section A and B, equivalent to B.E. Degree. On 31.5.1979 the appellants were promoted to the post of Assistant Engineers on adhoc basis. The said promotions were made within the quota of posts reserved for the promotees according to the relevant Service Rules by <ORG> consisting of Secretary, P.W.D., Chief Engineer, P.W.D. and <ORG>. The appointment orders stated that the promotion was being made to cope up with the work load in the <ORG> since Assistant Engineers approved by the <ORG> were not available and that the promotions were only for a period of one year. Since then, the appellants have been working uninterruptedly on the post of Assistant Engineers.

2. Respondents 3 & 4 were selected through the <ORG> and appointed directly as Assistant Engineers in the <ORG> by order dated 9.8.1979. The commission held in the year 1980, an interview of some of the promotes to be considered for the post of Assistant Engineers. The appellants have a grievance that though their juniors were called for interview, they were not considered without any reason therefor. However that grievance is outside the scope of the present controversy. In the interview held in the year 1984, the appellants were also called and they were duly approved and selected by the <ORG>. Consequently, they were confirmed as Assistant Engineers.

3. In the meanwhile, one D.N. <NAME>, who was an adhoc promotee as Assistant Engineer in the year 1970 just like the appellants and approved by the commission in the year 1980, filed a Writ Petition in <ORG> namely W.P. No. 1536 of 1981. claiming seniority in the post of Assistant Engineer from the date of initial appointment and officiation on the said post. That Writ Petition was treated to be one in representative capacity and notice was given to all concerned through the newspapers. A Division Bench of <ORG> upheld on 4.7.1989 the claim made by the petitioner in the said writ petition and held that the promotees would be assigned seniority from the date of continuous affliction and not from the date of approval by the <ORG>.

4. A similar controversy inter-se the promotees and direct recruits arose in another writ Petition No. 8966 of 1989 which was decided on 17.1.1990. There also the same view was taken by another Division Bench which was challenged in <ORG> (c) No. 4878 of 1990, V.K.Yadav Versus State of U.P. in this Court. The <ORG> was dismissed on 19.11.1990.

5. The judgment in the case of <ORG> referred to earlier was assailed in this Court in <ORG> (C) No. 9343 of 1990, C.P.Sharma Versus State of Uttar Pradesh and others. The appellant therein placed reliance on the judgment of this Court in P.O.Aggarwal Versus State of U.P. and Others (1987) 3 SCC 622. By judgment dated 1.2.1991, the <ORG> was dismissed by this Court.

6. Pursuant to the aforesaid judgments <ORG> gave benefit of seniority to the promotees. A seniority list was published, vide letter dated 3.12.1984 issued by the Secretary. <ORG> inviting objections filed by the direct recruits, a final seniority list was prepared and published, vide notification dated 11.7.1995. The first appellant was placed at Serial No. 566 and second appellant at Serial No. 567. respondents 3 & 4 were placed at Serial Nos. 712 and 722 respectively. Aggrieved by the said list, respondents 3 & $ filed Writ Petition No. 684 (SB) of 1995 in <ORG>. The main ground of attack was that the counting of the period of continuous officiation of the promotees from the date of adhoc appointment was against the decision of this Court in P.D. Aggarwal Versus State of U.P. (1987) 3 SCC 622. No promotee was impleaded as a party to the Writ Petition. The application filed by the appellants for impleading them as parties was also dismissed by <ORG>. However, the appellants were permitted to advance arguments through their counsel at the time of hearing. <ORG>. in its counter affidavit justified the seniority list as one based on the rulings in D.N.Saksena and V.K.Yadav.

7. <ORG> of <ORG> has quashed the seniority list on the ground that it was against the decision of this Court in <NAME>. <ORG> also held that the judgments in <NAME> and <NAME> wer also contrary to the said decision of this Court and not good law. <ORG> held that the period of service rendered by the promotee - Assistant Engineer before the appointment in accordance with the rules, that is appointment with the consultaiton of the <ORG>, can not be counted for the purpose of determining the seniority.

8. That is the judgment which is challenged in this appeal. Three questions were posed by the appellants for consideration:

1. Whether in the facts and circumstances of the case the appellants are entitled to seniority on the post of Assistant Engineers from the date they have been officiating as such or from the date they were selected and approved by the <ORG>?

II. Whether the appellants can be deprived of the benefits of their officiating service prior to the approval of the <ORG> for the purpose of seniority in view of the fact that the delay in granting approval for making them regular on the post of Assistant Engineer was attributable to <ORG> and the <ORG>, as the appellants were fully qualified to be appointed and approved as Assistant Engineers even on the date, they were appointed to officiate as such?

III Whether <ORG> was right in reopening the issues which have been decided in favour of the promotees by three different Division Benches of the same Court without retiring the matter to a larger Bench?

9. We do not propose to consider the third question as an answer in the negative would only lead to a remand to <ORG> for fresh consideration of the matter. As the dispute between the promotees and direct recuits has been pending for a long time, a remand will only prolong the agony of the parties and the matter may have to come again to this Court for decision. Hence, we propose to decide the appeal on merits.

10 We are also of the opinion that it is not proper to decide the second of the above questions. In this case the appellants or other promotees were not parties to the writ petition and <ORG> has decided only the general principle applicable in the dispute between the promotees and direct recruits in the matter of seniority and not considered the individual grievances if any, against the seniority list dated 11.7.1995. Any individual grievance against the said seniority list is a matter for agitation before the appropriate forum. We leave that question open.

11. What remains to be considered is only the first question set out above. The Service Rules applicable in this case are the U.P. Services of Engineers (Buildings and Roads Branch), Class-II Rules, 1936 as amended in 1969 and 1971 hereinafter referred to as Rules. Rule 5 provides that recruitment to the post of Assistant Engineer shall be made by direct recruitment as well as promotion. Rule 6 says that the Governor shall decide the number of appointments to be made at each selection in each kind of post from the sources mentioned in Rule 5. The provisos to the rule specify the proportion from each source. According to the provisos twenty five percent of the vacancies shall be filled by promotion of members of <ORG> and <ORG>. As per Rule 12, recruitment by promotion shall consider the cases of all eligible candidates and draw up, in order of merit a list of candidates considered suitable for promotion. A supplementary list of candidates whom the Secretary considers suitable for officiating or temporary appointments shall also be drawn and both lists should be sent to the <ORG> along with Character Rolls, etc. The <ORG> after examining the rolls may add to the lists as they may like and return them to the <ORG>. Thereafter the candidates will be interviewed by <ORG> preside over by a representative of the <ORG>. The <ORG> shall thereafter prepare two lists and place them before the <ORG>. The <ORG> shall make their final recommendations to the <ORG>. Appointments will be made on the basis of such recommendations. Rule 23 provides for seniority and sub rule (d) is very relevant in this case and it reads thus:

"As and when cacancies are allocated in any year according to the promotion specified in the first proviso to rule 6, the inter-se seniority of those referred to in clauses (a), (b) and (c) above will be determined by framing a cycle of 4 according to the following formula "-

3. D

4. D

Repeat Note (1) in the Rule reads as follows :-

"Not :-

Where the appointment order specifies a particular back date with effect from which <NAME> is to be appointed substantively (on probation against a clear vacancy on a <ORG> post) that date will be deemed to be the date of order of substantive appointment In other cases it will mean the date of issue of the order."

12. From the Rules applicable to the parties, the following position emerges:

(a) The number of vacancies for each year has to be determined.

(b) They have to be filled from the sources mentioned in the rules in the proportion specified.

(c) Selection of candidates from each source to bemade in the prescribed manner.

(d) In the case of promotions from <ORG> service, 25 per cent of the vacancies are reserved for them.

(e) Such of the candidates who are recommended by the <ORG> after following the prescribed procedure will be appointed to fill up the vacancies for the specified year.

(f) If anybody is appointed with effect from a back date, that date will be deemed to be the date of substantive appointment.

(g) Seniority of such person has to be counted from that date whether he was working on that post on officiating or ad hoc basis.

(h) It follows as a Corollary that any person appointed subsequent to he said date will be junior to him.

13. Bearing the above principles in mind the facts of the case may analysed. Undisputedly, the appellants possessed the requisite qualifications for the post of Assistant Engineer. Their promotions were within the quota prescribed for them as there were sufficient number of vacancies reserved for promotees. They were selected by <ORG> even for their ad hoc promotion. They were recommended by the <ORG> after some years but with reference to 1979. After such recommendation their promotions were confirmed with effect from 30.5.1979. The impugned seniority list was prepared on that basis after the issue of directions by the High court in D.N.Saksena and V.K.Yadav. It goes without saying that the said seniority list is in accordance with the Rules and can not be disturbed. But unfortunately <ORG> has upset that list on the ground that it violates the rule in 'P.D.Aggarwal.'

14. We shall now advert to 'P.D.Aggarwal' and all the other rulings cited by counsel on both sides in the chronological order, In <NAME> and <NAME>. Versus Chief Secretary. Govt. of U.P. and Ors. (1984) 4 S.C.C. 329, it was held that subsequent approval by <ORG> to temporary appointments already made will relate back to the date of initial appointment for the purpose of reckoning seniority on the basis of the general rule of continuous officiation in the absence of any particular rule framed in that regard. That case related however to a dispute between two sets of direct recruits.

15. In O.P.Singla versus Union of India (1984) 4 S.C.C. 450 the contest was between promotees and direct recruits. A Bench of Three Judges held that the seniority of direct recruits and promotees appointed under the Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts Created in the Service or in substantive vacancies to which they were appointed in a temporary capacity.

16. In <NAME> and others versus State of U.P. (1987) 3 S.C.C. 622 the dispute was between two sets of direct recruits. Whatever observation was made in that case must be taken along with the context. The respondents in that case were directly recruited as Asstt. Civil Engineers in substantive capacity against temporary vacancies in consultation with <ORG> under Rules, 1936. The appellants were also similarly recruited but later on the basis of the competitive examination conducted by the <ORG> they were appointed directly on probation against permanent vacancies. Both categories of Assistant Engineers were graduates in Engineering and were performing the same nature of work. In December 1961. the <ORG>. issued an D.M.Laying down principles for recruitment to permanent and temporary vacancies and pursuant thereto the Rules were amended in 1969 and 1971. The effect of the amendments was that the Assistant Engineers who had become members of service under the 1936 Rules would no longer be members of service and required to wait till selection and appointment as Assistant Engineers under Rule 5 (a)(ii) against quota fixed by Rule 6 of 1969 Amendment Rules. Consequently the Assistant Engineers appointed several years ago to the temporary posts had to wait until their selection and appointment to permanent posts against the prescribed quota whereas the Assistant Engineers recruited to permanent posts several years after would supersede the former in the matter of determination of seniority from the date of their appointment against the permanent vacancies. This Court quashed the amended rules as well as the seniority lists. In the course of the judgment, this Court said that the period of service rendered by the ad hoc appointees before their service had been duly regularised in accordance with the regularisation rules, cannot be taken into account in reckoning their seniority in service and that their seniority will be counted only from the date when such ad hoc appointees after regularisation in accordance with concerned rules had become members of the service. The Bench had no occasion to consider a situation similar to the one which has arisen in this case. Unfortunately, <ORG> has without understanding the ruling correctly observed repeatedly that the decisions in D.N.Saksena and V.K.Yadav and the seniority list prepared in 1995 in accordance with the same are contrary thereto.

17. In D.N.Aggarwal and Anr. versus State of M.P. and others (1990) 2 S.C.C. 2 553 ad hoc promotions were made when the persons concerned were not eligible and had not completed qualifying period of service. Though they were later selected by <ORG> on regular basis and appointed as such to the promotion post on their completing the qualifying period of service, it was held that their ad hoc period of service cannot be counted for the purposes of their seniority.

18. In Direct Recruit Class II Engineering Officers Association versus State of Maharashtra and others (1990) 2 S C C 715, <ORG> held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appintment and not according to the date of his confirmation. The Bench summed up the law in the form of eleven propositions. It is sufficient to refer to the first two propositions which are the following terms :

"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."

19. <NAME> case (1990) 4 S C C 24 has no bearing in this case as the initial appointments of the appellants therein who were direct recruits were not according to the Rules.

20. In State of Bihar versus <NAME> and others 1991 Supp. (1) SCC 334, it was held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. The respondents 1 to 5 in that case were directly appointed as Asstt. Engineers on the recommendation of <ORG> in 1961. Respondents 6 to 13 were promoted to the post in 1964 and the appellants were promoted in 1969. The promotees were shown as juniors to the direct recruits in the seniority list. On the representation of the promotees, an order was passed by the <ORG>. on 21.7.75 changing the date of promotion of the promotees to a prior date in 1961. Subsequently other orders were passed pushing back the dates of promotion still further to December 1958 for respondents 6 & 7 and February 1961 for respondents 14 to 23. Those orders were challenged by respondents 1 to 5 who were direct recruits and the orders were quashed. That ruling has no relevance in the present case.

21. <CITATION> 1992 Supp. (1) SCC 272 promotion was made in excess of the quota on ad hoc basis as a stop-pag arrangement as direct recruits were not available. Such appointment by promotion being contrary to rules, the Bench held that the promotees could not claim the benefit of their officiation in the promoted post before the date of the vacancy within the quota as such service was fortuitous.

22. In 'Aghore Nath Dey' (1993) 3 SCC.371, this Court explained the scope of applicability of corollary to Conclusion (A) and Conclusion (B) in <ORG> case (supra) and reiterated that the benefit of ad hoc service is not admissible if appointment was in violation of Rules. <CITATION> . 1995 Supp. (1) SCC 572 the contest was only between two sets of direct recruits and the decision turned on an interpretation of the relevant Service Rules.

23. In V.P. Shrivastava and ors. Versus State of M.P. (1996) 7 SCC, 759 the promotees who were appointed de horse the rules and not approved by <ORG>, were held to be juniors to direct recruits regularly appointed after selection through <ORG> in spite of their longer service.

24. In <ORG> case J.T. 1997 (2) S C 461 the promotees were appointed in officiations capacity against vacancies reserved for direct recruitment as no direct recruitment had taken Place. This Court affirmed the judgment of <ORG> holding that direct recruit was to be treated from the date on which he actually joined the service and the promotee was to be fitted into the service from the date when he was entitled to figment in accordance with quota and rota prescribed under the Rules.

25. The ruling in 'Jagdish Ch. Patnaik' J.T.1998 (3) S C 105 has no application in this case. It is wholly unnecessary to invoke the principle stated in Mohd. Sadar Ali J.T. 1998 (5) S C 627 that the earlier judgment cannot be reconsidered after a lapse of nine years.

26. We have no hesitation to hold that the impugned seniority list of 1995 prepared by the <ORG>. pursuant to the directions contained in D.N.Saksena and <NAME> is in accordance with the Rules and cannot be interfered with on the ground that promotees have been given the benefit of their service in officiating capacity. The question is answered in favour of the appellants. As stated already individual relevances against their placement in the list have to be agitated in appropriate forum. The judgment of <ORG> is unsustainable and it is set aside. The Writ Petition filed by respondents 3 & 4 is dismissed. The parties will bear their respective costs.

27. Before parting with the case, we wish to place on record our strong disapproval of the stand taken by the State Government in this appeal. In <ORG>, Government stood by the seniority list and justified it. When <ORG> allowed the writ petition, the <ORG>. ought to have filed an appeal in this Court particularly because the promotees were not made parties to the writ petition. Not only did the <ORG>. fail to do so but in this Court it actively supported the case of the writ petitioners. The conduct of the <ORG>. is highly reprehensible. It is only because of such attitude, the disputes between direct recruits on the one hand and promotees on the other became perennial. It is hightime the <ORG>. released that if the employees are made to live through endless litigations, administration cannot be carried on properly.


dsUnzh; lwpuk vk;ksx Central Information Commission 2 ry] foxa 'c' / 2nd Floor, 'B' Wing vxLr ØkfUr Hkou / August Kranti Bhavan Hkhdkth dkek Iysl / Bhikaji Cama Place ubZ fnYyh  110066 / New Delhi - 110066 Phone No.01126183996 ***** No.CIC/SM/C/2012/000211 Dated:16 February 2012 Name of the Complainant : Shri Narain Thirumurthy C/o. Sri Ranjani Apartments, Old No. 4/8, Gandhi Street, T Nagar, Chennai - 600 017. Name of the Public Authority : The Central Public Information Officer, <ORG>, Regional Office, 130, Broadway, Prakassam Salai, Chennai, Tamilnadu - 600 034. ORDER

The <ORG> has received a petition from <NAME> of Chennai stating that his RTIapplication of 24 August 2011 filed with <ORG>, <ORG>, Chennai, has not been responded to within the time limit prescribed under the Right to Information (RTI) Act, 2005. A copy of his RTIapplication is enclosed for ready reference.

2. The <ORG> has decided to treat this petition as a complaint under Section 18 of the RTIAct, 2005, and hereby directs the CPIO/Public Information Officer, <ORG>, Chennai, to provide the information sought by the Complainant by 16 March 2012.

3. Since the PIO has failed to respond to the RTIapplication mentioned above in time, he is, therefore, required to send his explanation in writing by 20 March 2012 to Show Cause as to why a maximum penalty of Rs.25000/ for the delay in supply of information may not be levied upon him. If no written explanation is received from the <ORG> by 20 March 2012, the <ORG> will decide the case exparte and would impose the maximum penalty prescribed under Section 20(1) of the Right to Information (RTI) Act, i.e., Rs. 25,000/, upon the <ORG>/deemed PIO. If, however, the <ORG> had responded in time and provided the desired information, please let us know at the earliest.

4. The Complainant is advised that in case he does not receive any information from the CPIO after this order of the <ORG>, he may write to the <ORG> against the noncompliance of the <ORG>'s orders.

5. The <ORG> ordered accordingly.

(<NAME>) Chief Information Commissioner Authenticated true copy:

(<NAME>) Deputy Registrar Cc:

1. <NAME>, C/o. <ORG>, Old No. 4/8, Gandhi Street, T Nagar, Chennai - 600 017.

2. The Central Public Information Officer, <ORG>, Regional Office, 130, Broadway, Prakassam Salai, Chennai, Tamilnadu - 600 034.


JUDGMENT <NAME>, J.

1. In these appeals the challenge is to the decision of <ORG> who had upheld the acquisition of land of the appellants which had been acquired by the respondents under the provisions of the Rajasthan Urban Improvement Act, 1959 (hereinafter referred to as 'the said Act).

2. The proceedings for acquisition of land of the appellants commenced with the State of Rajasthan issuing notification dated 10th October, 1979, under Section 52(2) of the said Act proposing to acquire the land, described in the said notification, which was situated in various villages in and around the city of Jaipur. The notification stated that it was necessary to acquire the land mentioned therein for improvement of land of Sector 1A of Jaipur City for the purposes of multipurpose schemes, i.e., for the construction of buildings residential, commercial and industrial units. By this notification information was given to all the concerned owners and persons interested in the land which was sought to be acquired to file any objections, which they had, against the proposed acquisition. In respect of the land of the appellants notification under Section 52(1) of the said Act was issued on 20th April, 1984. It was stated therein that the land mentioned in the said notification was needed under the said Act for the improvement of urban areas and this notification was issued after considering those objections "which had been filed by the interested persons. It was also notified that on the date of publication of the said notification in <ORG> "the said land shall be vested in <ORG> free from all encumbrances". Though, this notification was dated 7th March, 1984, the same was, however, published in <ORG> on 20th April, 1984.

3. The Land Acquisition Act , 1894, was extended to the State of Rajasthan on 24th September, 1984. Some of the persons whose lands were acquired filed suits challenging the acquisition proceedings under Section 52 of the said Act. According to the appellants the said suits were dismissed on 2nd September, 1986. Awards were, passed on different dates. In the present appeals the awards were passed on 30th September, 1988, 30th November, 1988 and 28th June, 1989.

4. A number of writ petitions were then filed in <ORG>. Vide a common judgment dated 21st October, 1992, a Single Judge of <ORG> dismissed 24 writ petitions and upheld the acquisition of the land which had been made. Appeals were filed against the said judgment and a Division Bench of <ORG> dismissed the same on 17th December, 1992. Civil Appeal Nos. 624-25 and 626-28 of 1993 challenge the aforesaid judgment of the Division Bench of <ORG>.

5. Another set of appeals against the judgment of the Single Judge of <ORG> were dismissed by <ORG> vide judgment dated 12th May, 1994, by following its earlier decision of 17th December, 1992. Special Leave Petition (Civil) No. 15971 of 1995 is filed against this judgment.

6. The main contention which has been urged on behalf of the appellants is that no award had been made within two years of the notification issued under Section 52 of the said Act. It was contended that with the Land Acquisition Act 1894 having been extended, the Rajasthan Urban Improvement Act, 1959 ceased to have been any operation and thereafter acquisition proceedings were required to be taken under the relevant provisions of the Central Act . Section 11-A of the Land Acquisition Act 1894 requires that the award should be made within two years of the publication of Section 6 notification and, it was submitted, that in the instant cases the awards were made beyond the said period of two years and without complying with the provisions of Section 6 of the Land Acquisition Act, 1894.

7. It was also submitted by Mr. <NAME>, learned senior counsel for the appellants, that another Division Bench of <ORG> in the case of <CITATION> 1993(2) WLC (Raj) 738, had quashed the notification of 10th October, 1979, issued Under Section 52(2) of the said Act as well as the notification dated 7th March, 1984, issued under Section 52(1) of the said Act. The submission was that as this judgment has not so far been reversed, therefore, this Court must hold that the acquisition allegedly made by the respondents

8. Section 52 of the Rajasthan Urban Improvement Act, 1959 contains provision for compulsory acquisition of the land and the same reads as under could no longer be sustained.

Compulsory acquisition of land.--

(1) Where on representation from the Trust (or otherwise) it appears to <ORG> that any land is required for the purpose of improvement or for any other purpose under this Act, <ORG> may acquire such land by publishing in the official Gazette a notice specifying the particular purpose for which such land is required and stating that <ORG> had decided to acquire the land in pursuance of this section.

(2) Before publishing a notice under Sub-section (I), <ORG> shall by another notice call upon the owner of the land and any other person who in the opinion of <ORG> may be interested therein to show cause, within such time as may be specified in the notice, why the land should not be acquired.

(Such notice shall be individually served upon (he owner of the land and any other person who in the opinion of <ORG> may be interested therein. It shall also be published in <ORG> at least 30 days in advance and shall be pasted on some conspicuous place in the locality, where the land to be acquired is situate. Such publication and pasting of notice shall be deemed as sufficient and proper service of notice upon the owner of the land and upon all other persons who may be interested therein.) (3) Within the time specified in the notice, the owner of the land or any other person interested therein may show cause and make objections, why the land should not be acquired. Every such objection to the notice given under Sub-section (2) shall be made in writing to the Officer on Special Duty, or any other officer appointed by <ORG> for the purpose. Such officer shall give the objector an opportunity of being heard, either in person or by pleader, and after hearing all such objections and after making such enquiry, as he deems necessary, shall submit the case for the decision of <ORG> together with the record of the proceedings held by him and a report containing his recommendations on the objections. Thereafter, <ORG> may pass such orders as it deems fit. The decision of <ORG> thereon shall be final.

(4) When a notice under Sub-section (I) is published in the Official Gazette, the land shall, on and from the date of such publication, vest absolutely in <ORG> free from all encumbrances.

(5) Where any land is vested in <ORG> under Sub-section (4), <ORG> may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to <ORG> or any person duly authorised by it in this behalf within thirty days of the service of the notice.

(6) If any person refuses or fails to comply with an order made under Sub-section (5), <ORG> may take possession of the land and may for that purpose use such force as may be necessary.

(7) After the land has been acquired and its possession taken <ORG> shall, on payment of the amount of compensation as determined under Section 53 , the amount of interest thereon and of all other charges incurred by <ORG> in this connection, transfer it to the <ORG> or any other prescribed authority or department for the purpose for which it is acquired.

Provided that such transfer of the land may he made to the <ORG> or to any other prescribed authority or <ORG> without recovering any amount,--

(i) where <ORG> is satisfied that any such land is urgently needed by the <ORG>, prescribed authority or <ORG> for carrying out improvement under the Act immediately, or

(ii) where any such land is intended to be allotted free of charge to the Schedule Castes. Scheduled Tribes or to person entitled under Section 31 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) to possess a site for a residential house in the abadi of the Urban area free of charge.) (8) Any notice issued or published by <ORG> under this section may also be issued or published for and on behalf of it by any officer subordinate to it so authorised.

9. After the extension of the Land Acquisition Act , 1894, to the State of Rajasthan, the existing Rajasthan Urban Improvement Act, 1959 stood repealed. <ORG> then passed the Rajasthan Urban Improvement (Amendment) Act. 1987 (hereinafter referred to as 'the Amending Act '), with a view to amend the provisions of the Principal Act and to provide for certain transitory and special procedure for the disposal of pending and present proceeding as well as payment of compensation, interest etc. The Amending Act incorporated a new provision, namely, Section 60-A in the Principal Act. This Section 60-A provided for transitory provisions for pending matters relating to acquisition of land. Sub-section (3) of this section relating to the period within which the award could be made was as follows:--

(3) Where in a matter pending on the date of commencement, a notice under Sub-section (2) of Section 52 or a notice under Sub-section (1) thereof has been served of, as the case may be, published, such notice shall be deemed to be the notification or declaration published or made under Sub-section (1) of Section 4 or, as the case may be, under Sub-section (1) of Section 6 of the Land Acquisition Act and the declaration or award in such a matter shall be made within a period of one year or, as the case may be, two years from the date of commencement.

The provisions of this Amending Act were held to be ultra vires by a decision of <ORG> inasmuch as the said Act did not have the assent of the President. Thereupon, the Rajasthan Urban Improvement (Amendment and Validation) Act , 1980 thereinafter referred to as the Validating Act ) was passed which received the assent of the President on 24th March. 1995. A new Section 60-A was inserted in the Principal Act which contained, a transitory provision and which reads as follows:

60-A. Transitory provisions or pending matters relating to acquisition of land notwithstanding anything otherwise contained in Sub-section (1) of Section 52 , where in any matter relating to the . acquisition of land pending on the date of commencement of the Rajasthan Urban Improvement (Amendment) Act, 1987 (hereinafter in this section referred to as the date of commencement), an action, thing or order has been taken, done, or made under and in accordance with the provisions of this Act as it stood before the date of commencement such action, thing, or order shall not be re-opened or reviewed or be liable to be challenged on the ground that such action, thing or order was at variance with that provided in the Land Acquisition Act , 1894 (Central Act I of 1894) (hereinafter in this section referred to as the Land Acquisition Act ) subject however that any further proceedings, action or order in such matter conducted, taken or made on or after the date of commencement shall subject to the other provisions of this section, be made under and in accordance with the Land Acquisition Act .

(2) The amount of compensation or interest or that payable for any other reasons shall in a matter pending on the date of commencement be payable under and in accordance with the provisions of the Land Acquisition Act and the money paid prior to the date of commencement shall be deducted from or adjusted against the said amount.

(3) Where in a matter pending on the date of commencement, a notice under Sub-section (2) of Section 52 or a notice under Sub-section (1) thereof has been served or as the case may be published such notice shall be deemed to be the notification or declaration published or made under Sub-section (1) of Section 4 , or as the case may be under Sub-section (1) of Section 6 of the Land Acquisition Act and the declaration or award in such a matter shall be made within a period of one year or, as the case may be, two years from the date of commencement.

(4) Where any land has, prior to the date of commencement, vested in <ORG> or its possession has been taken in accordance with the provisions of this Act as it stood before the date of commencement, such vesting or possession of land shall not be liable to be challenged on the ground that no amount of compensation was tendered and paid in accordance with Sub-section (3A) of Section 17 of the Land Acquisition Act subject, however, that such amount shall be tendered and paid within a period of six months from the date of commencement.

(5) In determining the amount of compensation to be awarded in a matter pending on the date of commencement, the market value of the land at the date on which the notice was published in the official gazette under Clause (b) of Sub-section (6) of Section 52 as it stood before the date of commencement shall be taken into consideration.

(6) An appeal filed under Section 54 or Section 56 or a dispute referred under Section 55 or Section 59 and pending on the date of commencement shall be decided having regard to the provisions of the Land Acquisition Act .

10. The provisions of Section 52(2) of the said Act are akin to Section 4 of the Land Acquisition Act. According to this section before publishing a notice under Sub-section (1), a notice is issued to the owners of land and other persons, who are interested, to show cause why <ORG> should not acquire the. land. Due publicity of the issuance of the said notice is required to be given, apart from individual service of the said notice. Sub-section (3) of Section 52 enables the owners or the person interested to show cause and file objections against the proposed acquisition of the land. These objections are to be in writing and an opportunity of being heard, in person or through pleader, has to be afforded by the Officer on Special Duty to the objectors. Thereupon a report is required to be given to <ORG> containing the recommendations on the objections which are filed. It is evident that the enquiry envisaged by Sub-section (3) of Section 52 is similar to the one under Section 5-A of the Land Acquisition Act, 1894. It is after complying with the provisions of Sub-sections (2) and (3) that <ORG> can issue a notification under Sub-section (1) of Section 52 acquiring the land specified in the notification for the purpose of improvement or for any other purpose under the Act. On the said notification under Section 52(1) being issued, Sub-section (4) of Section 52 provides that with the publication of the notice in <ORG>, the land shall on and from the date of the publication "vest absolutely in <ORG> free from all encumbrances". Once the land has so vested, possession is to be taken by <ORG> and after the amount of compensation is determined according to Section 52 , the payment of the same is to be made and the land can then be transferred to <ORG>.

11. From the facts narrated hereinabove it is clear that the Central Act was extended to the State of Rajasthan only after the land in question had vested in <ORG> with the publication of the notification under Section 52(1) on 10th October, 1984. Once the vesting of the land in <ORG>, free from all encumbrances, was completed, the subsequent extension of the Land Acquisition Act , 1894 to the State of Rajasthan and the amendments made by the Amending Act s to the Rajasthan Urban Improvement Trust Act becomes wholly irrelevant and of no consequence. Neither the amendments nor the extension of the Central Act can have the effect, in law or otherwise, of divesting the State of ownership of the land which had already been vested in it.

12. The provisions of Sub-section (4) of Section 52 are somewhat similar to Section 17 of the Land Acquisition Act, 1894. Just as publication of a notification under Section 52(1) vests the land in the <ORG>, free from all encumbrances, as provided by Section 52(4) , similarly when possession of land is taken under Section 17(1) the land vests absolutely in the <ORG> free from all encumbrances. A question arose before this Court that if there is a non-compliance with the provisions of Section 5-A and an award is not made in respect to the land so acquired, would the acquisition proceedings lapse. In <NAME> v. <ORG> of U. P. , this Court held that once possession had been taken under Section 17(1) and the land vested in the <ORG> then the <ORG> could not withdraw from acquisition under Section 48 and the provisions of Section 11-A were not attracted and, therefore, the acquisition proceedings would not lapse on failure to make an award within the period prescribed therein. It was further held that non-compliance of Section 17 (3-A), regarding part payment of compensation before taking possession, would also not render the possession illegal and entitle the <ORG> to withdraw from acquisition. The aforesaid principle has been reiterated by this Court in <NAME>. <ORG> of A. P. , and <NAME> v. <ORG> of Bihar . In view of the aforesaid ratio it follows that the provisions of Section 11-A are not attracted in the present case and even if it be assumed that the award has not been passed within the stipulated period, the acquisition of land does not come to an end.

13. It was contended by the learned counsel for the respondents that the <ORG> had complied with all the legal requirements in the present case. Our attention was drawn to Section 60-A of the Amending Act and the Validating Act and it was submitted, and in our opinion rightly, that Sub-section (3) of the Amending Act and Sub-section (4) of the Validating Act only required the making of the award and payment of money within the period stipulated therein. The facts narrated hereinabove show that this was done. In any case non-compliance with the provisions of this sub-section will not in any way affect the vesting of the land which has already taken place with the publication of the notification dated 20th April, 1984. The provisions of Sub-section (4) of Section 60-A of the Validating Act are analogous to Section 17-A of the Land Acquisition Act and as held in the aforesaid decisions of this <ORG> non-compliance with the said provisions will not in any way amount to the divesting of acquisition which has taken place or the acquisition proceedings having lapsed.

14. There is also no merit in the contention of the learned counsel for the appellants that the decision of the Division Bench of <ORG> rendered in 1993 in <NAME>'s case 1993 (2) WLC 738 (supra) can in any way affect the present proceedings. Firstly, the said decision of the Division Bench of <ORG> is not final because the Special Leave Petition (C) Nos. 3100-3127 of 1994 have been filed and the same are pending in this Court; secondly this decision has not been approved by a Full Bench of <ORG> in its judgment dated 1st November, 1995 in D.B. Civil Special Appeal No. 25:5 of 1995 -- <CITATION> , and the other connected cases.

In this judgment, dealing with <NAME>'s case (1993 (2) WLC 738) the Full Bench observed as follows:--

<ORG> of this Court in the case <CITATION> . reported in (1993) 2 WLN 527, has held that the acquisition proceedings cannot be taken in the absence of sanctioned notified scheme. This view has been taken in the absence of sanctioned notified scheme. This view has been taken by interpreting only para 9 of the <ORG> decision of <ORG>'s case 1994 AIR S.CW 2272 to the facts and circumstances of the case before <ORG>: Consideration of paras 8 and 11 of the <ORG> decision does not find place in the decision of <ORG>. As stated above, the combined effect of paras 8, 9 and 11 of the <ORG> decision seems to be otherwise. With utmost respect, it is difficult to agree with the observations made and view expressed by <ORG> in the case of <NAME> (supra) as regards the decision of the <ORG> in the case of <ORG> (supra).

It is indeed unfortunate that the judgment of <ORG> in <NAME>'s case was relied on, when the same had been overruled by <ORG> of that Court without referring to <ORG> decision. Further-more even on merits we find the said decision of <ORG> of <ORG> in <NAME>'s case does not lay down the correct law and the later decision of <ORG> is correctly decided. The contention which was raised before <ORG>, and it succeeded, in <NAME>'s case was that there could be no proceedings for acquisition which do not conform with the provisions of the Master Plan inasmuch as the Master Plan shows one particular use for the land in question the said land could not be acquired for a different purpose. It was further contended that without framing of a scheme land could not be acquired under Section 52 of the said Act. In upholding this contention <ORG> placed reliance on the Two Judge Bench decision of this Court in <CITATION>  : 1992 AIR SCW 1674.

15. Decision of this Court in <CITATION> , also considered a similar question pertaining to the Rajasthan Urban Improvement Act, 1959. It had been contended that land could not be acquired under Section 52 of the Act unless and until there was a scheme for improvement of the urban area under the Rajasthan Urban Improvement Act, 1959. Rejecting this contention this Court observed as follows (at pp. 2277 and 2278 of AIR SCW) :--

The crux of the argument is that the improvement in the urban area can only be carried out by executing the schemes framed under the Act and in no other way. We do not agree with Mr. <NAME>. Under the scheme of the Act the improvement of the urban area can be undertaken by the <ORG> and also by any of the departments of the <ORG>. The framing of the scheme becomes mandatory only when the work is undertaken by the <ORG>. The State <ORG>, in any of its departments, may decide to develop the urban area under the Act and in that case it would not be necessary for the <ORG> to have a scheme framed under Chapter V of the Act. The power of the State <ORG> to acquire land under the Act has been designed to meet the scheme of the Act. Under Section 52 of the Act the land can be acquired by the State <ORG> at the instance of the <ORG>, or a department of the <ORG> or any prescribed authority. The plain language of Section 52(1) of the Act negates the contention raised by Mr. <NAME>. Where on a representation from the <ORG> or otherwise it appears to the State <ORG> that any land in required for the purpose of improvement or for any other purpose under the Act it can acquire such land by issuing a notification under Section 52(1) of the Act. It is, thus, clear that the State <ORG> has the power to acquire land either for the execution of the schemes framed by the <ORG> under Chapter V of the Actor for any other public purpose under the Act. No fault can be found with the procedure followed by the State <ORG> in this case. The notification issued by the State <ORG> under Sub-section (1) of Section 52 of the Act specifically states that the land was being acquired for the construction of residential, commercial and administrative buildings. The <ORG> -- having taken a policy decision to acquire land for the public purpose -- was justified in issuing the notification under Section 52(1) of the Act in respect of the land in dispute.

16. The effect of this is that even if there is no scheme prepared or finalised, under a <ORG> or Urban Improvement Act, acquisition could be validly made under the provisions of the Land Acquisition Act for a public purpose or under the Rajasthan Urban Improvement Act for the purpose of improvement or for any other purpose under the Act. The decision relating to the Rajasthan Act is directly on the point. The other decision under the Tamil Nadu Act does not, therefore, require any further discussion.

17. For the aforesaid reasons, we do not find any merit in these appeals and the same are dismissed with costs.

18. Civil Appeal No. 3851 of 1996 (@ SLP (C) No. 15971/95) Leave granted. The appeal is dismissed with costs.


1 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present : The Hon'ble Justice <NAME> And The Hon'ble Justice Dr. <NAME> M.A.T. 1493 of 2013 Re.: C.A.N. 9931 of 2013 With W.P. 27712 (W) of 2013 With W.P. 29962 (W) of 2013 State of West Bengal & Ors. -Versus- <ORG> & Ors. For the Appellant :- Mr. <NAME>, State Senior Advocate Mr. <NAME> Mr. <NAME> For Writ Petitioners / :- Mr. <NAME> Respondent Mr. <NAME>

Ms. <NAME> Mr. <NAME> Mr. <NAME> Judgment on :- September 26, 2013 We may love them, we may hate them. How can we ignore them when we use them the most. Article 21 of the Constitution of India has guaranteed to every citizen to have a decent living. Article 25 of the Constitution would, inter alia, grant freedom to the citizen of our country to perform religious rites. Mr. <NAME>, learned Counsel appearing for the petitioners, also draws our attention to Article 25 of the Constitution, where freedom is guaranteed to profess, practice and propagate religion.

The writ petitioners/respondents have come up as against the order of refusal, rather in-action on the part of <ORG>, in allowing them to perform Durga Puja, the annual festival of our <ORG>, on the busy thoroughfare. The Administration would contend, as a policy decision the <ORG> is not granting any new permission to <ORG>. Such policy was upheld by at least two Division Benches dated September 16, 2011 passed in the matter of W.P 15172 (W) of 2011 and order dated September 01, 2006 passed in the matter of W.P. 21481 (W) of 2004.

The problem before us is, however, somewhat different. Here, the association claiming to have permission to perform Durga Puja, would have members of marginalized society, being engaged in the oldest trade in human civilization. They, however, did not feel shy to call themselves as sex-workers. They would complain, they are outcast, they are not allowed to have free access to any Public Puja Pandal, offering puja to the Goddess, hence they would intend to perform puja of their own. We have interacted with the Police Officials involved in the process yesterday and today. They have sound logic to deny permission. They would contend, they are duty bound to follow the policy decision that was upheld by two Division Benches referred to above. Moreover, the place where the petitioners are seeking permission, is not only a public thoroughfare but also a densely populated area. Moreover, there were fractions, who also applied for similar permissions. If one is given permission that would discriminate the others.

Mr. <NAME> appearing for the writ petitioners would, however, strenuously dispute such contention. According to him, the other rival contenders are nothing but creation of the people, who are bent upon to stall the process.

If we look to the claim of the petitioners little deeper, we would find, they would be ventilating their right guaranteed under the Constitution. They would be rather asking for their recognition. This is a debatable issue. It would be for the legislature to give a thought over it. We do not express any opinion. At the same time we cannot ignore the objection raised by the <ORG>.

We live in a densely populated State. The situation in our capital is worse having thick population, being multi national, multi religion and multi linguistic. We do not refuse anyone, whoever comes to the city.

The Durga Puja is considered to be the annual festival of the State. Everyone, irrespective of caste and creed and irrespective of financial status, would have the right to enjoy the fruits of the festival. We wonder, how effectively the administration, particularly the police administration, would manage the situation. They manage the crowd, they maintain the law and order, hence their caution cannot be ignored.

Mr. <NAME>, learned Government Pleader, has assured this <ORG>, the Government would definitely give serious thought over it and would try to ameliorate the grievance of the writ petitioners in the near future.

We, however, feel, as and by way of workable arrangement, particularly keeping in mind the right of the members of the writ petitioners and members of that marginalised society at large working in the said area, to perform Durga Puja of their own, we intend to form a committee.

Mr. <NAME>, on instruction, offers the office room of the writ petitioners where Durga Puja was being performed in earlier years.

Considering the fact that the population in that particular area involved in the trade, would be 36,000, we would request the administration to permit them to cover 8 feet footpath and road together taken form the outer wall of the premises. It would be a makeshift pandal of 15 feet by 8 feet that would be used as the waiting hall for the visitors/participants who would be coming to offer puja and enjoy the festival.

We make it clear, the applications that were rejected, should also be considered in the sense, the <ORG> would bring them in one fold and would also allow them to participate in the puja. One representative each from the applicants including the petitioner No. 1, would be taken in the <ORG>. The <ORG> would be headed by three advocates of this <ORG>, namely, Ms. <NAME>, Ms. <NAME>, and Ms. <NAME>, who will act jointly and/or severally.

We are told, Ms. <NAME>, learned advocate, is out of the city at the moment. We request Mr. <NAME> to inform her.

Ms. <NAME> is present in <ORG>. She has kindly agreed to take the burden, particularly by changing her tour schedule during Puja Holidays. We would similarly request Ms. <NAME> to extend her cooperation.

The Officer-in-Charge, <ORG>, would render all necessary assistance to the Special Officers so that they could hold the meeting at the earliest with all the unsuccessful applicants as well as representative of the petitioners so that they could fix the modalities for performing the Puja.

We make it clear, since <NAME> would be held in a covered room, the circular that is prevalent would possibly not be applicable.

We also make it clear, this arrangement would be for this year only. We leave it to the <ORG> to find out a better management next time.

We do not express any opinion on the merits of the challenge to the said circular made herein.

In view of this workable arrangement, we feel, there would be no further need to keep these two writ petitions, being W.P. 27712 (W) of 2013 and W.P. 29962 (W) of 2013, pending before us, including the appeal.

We dispose of all the pending litigations. We hope and trust, the members of the petitioners and the members of the concerned trade at large would have a happy Durga Puja and they would enjoy the festival with all flying colours.

Before we part with, we would be failing in our duty if we do not acknowledge the contribution of the learned advocates and the police officers in assisting us, particularly, Mr. <NAME>, learned Government Pleader along with his Juniors, Mr. <NAME> along with Mr. <NAME> and their Juniors. We would also appreciate the immense assistance given to us by the concerned Police Officers, Mr. <NAME> and Mr. <NAME>.

At the end, we request the media personnel present in <ORG> to report only what has actually transpired in <ORG> and not to bring something, which is not correct.

Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.

( <NAME>, J.) ( Dr. <NAME> , J.) akb.