filing objections section 5 of land acquisition act 1894
Dr Sangh Mittra
(Querist) 13 September 2016
This query is : Resolved
Sir,
The Land Acquisition Collector heard the objector Society Secretary and and recommended that the Lands constructed and under construction and vacant be exempted from the Section 6 Declaration.
However, the Joint Site Inspection Committee chaired by the MUDA Administrator (to be the beneficiary of the acquisition) recommended that the constructed houses be released but vacant lands in Society be acquired.
The MUDA Administrator moved a note
mis -representing to State Government the lands recommended to be released from the acquisition as if recommended by the Land Acquisition Collector.
Thus in the Section 6 Declaration the lands recommended to be acquired/ released by the Joint Site Inspection Committee found its way.
The State maintained in all replies that the Land Acquisition Collector's recommendations were accepted by the State Government.
Upon challenge in the High Court the State contends that the since the individual members did not file objections , they can not challenge.
My questions are:-
1. Can the objections filed by the House Building Society- filed on behalf of its members- duly accepted as such- be later on negated by the State in the legal arguments?
2. Is there any fraud on power on behalf of the Administrator, MUDA to have termed the recommendations actually made by the Joint Site Inspection Committee as that of the Land Acquisition Collector?
Please advise.
Dr Sanghmittra,Advocate
cherukuri prasad
(Expert) 15 September 2016
Yes. Why not after a decade. Right is immortal
Dr Sangh Mittra
(Querist) 15 September 2016
Dear Shri Prasad,
Unfortunately, the Reply does not clarify the matter.
Why the Experts with highest ranking on this forum have not replied/
Humble Rquest to them to reply, please
Kindly quote case Law , if any , in which the Objections filed under Section 5-A of the LA Act 1894 by the Cooperative House Building Society, on behalf of its Members, were upheld.
With Regards,
Dr SM
Dr Sangh Mittra
(Querist) 15 September 2016
The Query is not Resolved so far!
Guest
(Expert) 15 September 2016
made thereupon be later treated, after about a decade be contended by the State, in the face of the challenge by some members as no objection on behalf of its members?
Please clarify or redraft this sentence for my better understanding.
Previous all sentence is clear to me .
Also please clarify what where the recommendation done by land acquisition officer ?
See land acquisition matter of old act are still pending so please take steps fast and in correct direction because they are clearing the backlog fast
Dr Sangh Mittra
(Querist) 16 September 2016
The Query may kindly be resolved with the help of the Experts on this esteemed Forum.
With Regards,
Dr SM, Advocate
Dr Sangh Mittra
(Querist) 16 September 2016
Respected Experts with the highest ranking on the Lawyersclubof india,
Raj kumar makkad,
Rajendra K Goyal,
Devajyoti BarmaN,
ajay sethi,
prabhakar singh,
R.K Nanda,
PS Dhingra,
and esteemed all Advocates
Sirs,
With reference to my query kindly enlighten with reply upon the following questions:
1. Can the objections filed by the House Building Society- filed on behalf of its members- duly accepted as such- be later on negated by the State in the legal arguments?
2. Is there any fraud on power on behalf of the Administrator, MUDA to have termed the recommendations actually made by the Joint Site Inspection Committee as that of the Land Acquisition Collector?
With Regards,
Dr SM, Advocate
Guest
(Expert) 16 September 2016
Now I understood your problem better with similar matter , I saw.
1) This is old problem that some officer goes and write some thing and some people remain in false impression .
Similar case - One officer with Municipal stamp and designation wrote letter indicating that reservation on plot is removed under town planing etc.
After some months affected people came to know that this officer destroyed papers from file which he send to people when he found he had done mistake , and out of his capacity , and in few days General Body of Municipal Corporation passed resolution to acquire property.
Now whether that officer had powers or not to pass orders that reservation is removed this is first question of fact which was considered ?
Additionally in mean time Govt. amended State town planning act and said without Proper Gazette notification no reservation can be removed or no property can be withdrawn from Land Acquisition etc.
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Since Acquisition is subject which comes in concurrent list of schedule VII of constitution both Central Land Acquisition law and state law required to be analysis.
In your case it seems State has taken stand that officer who accepted objection had no powers to order withdrawal of acquisition proceedings .
Well under Land Acquisition act state has also powers to make rules independently , I am not getting correct rule details while typing but if my memory don't give false impression then once preliminary declaration of acquisition of property is done under Land acquisition act (Most probably) when decision is taken to withdraw from acquisition then again proper authorized person with sign makes Gazette notification intimating that Land Acquisition is withdrawn.
Till the time new Gazette notification is not done , It is presume file is pending and no decision taken.
Now under circumstances people have blind belief that when collector or Municipal Commissioner says some thing or write some thing it is final or authority.
No , case is you need to see whatever they state is within frame work of law . If Rules state , if Preliminary Gazette notification is done for acquisition in Official Gazette of State then withdrawal notification too is required to be done by state in Gazette.
At same time State Advocate are expert in Court by taking their famous statement claiming "State is not bounded by fraud forgeries done by its officers , State is taking parallel disciplinary action /legal proceedings against concern officers.
This is what I could share on this
Guest
(Expert) 16 September 2016
In short if proper new Gazette notification is not done by State of withdrawal then presume that withdrawal of acquisition never took place.
This rule is generally framed under relevant section of old Land Acquisition act where state have powers to make rules regarding acquisition etc.
Under rules it is properly written which steps who has to take and how. Collection of such rules etc. in Maharashtra is called Land Acquisition Manual
Guest
(Expert) 16 September 2016
Means now my interpretation is that this is one more case where people where under impression that reservation /Acquisition of land is cancelled.
But such removal of reservation in town planing etc /Acquisition can be removed only if Gazette notification is done.
Dr Sangh Mittra
(Querist) 16 September 2016
Thanks. Dear Madhu Ji,
In the Public Interest it would be worth the Public Purpose if the following experts of this forum give their opinion on the core query.
This is likely to effect the fate of thousands of illiterate, helpless persons in this part of India.
Since I am doing the case for them free of cost, out of charity and all is not in my understanding so I plead the experts to kindly reply. I especially request the following:
Shri Raj kumar makkad,
Shri Rajendra K Goyal,
Shri Devajyoti BarmaN,
Shri ajay sethi,
Shri prabhakar singh,
Shri R.K Nanda,
and Shri PS Dhingra,
With due Regards,
Dr SM , Advocate
Raj Kumar Makkad
(Expert) 16 September 2016
1. Once on the physical verification of the land by Joint Site Inspection Committee, the LAC accepted the major part of the objections submitted by House Building Society consisting all affected members in a representative capacity vide which constructed and some other land was released from acquisition then the same department cannot take the objection that the writ has not been filed by individual members or the objections had not been preferred by the individual owners of the land. The doctrine of Estoppel shall come in the way and the plea of respondents shall not be tenable.
2. Land acquisition collector is bound to accept the recommendation of Joint Site Inspection Committee qua the situation of the land and accordingly decide the objections raised by land-owners. As the interference of MUDA has taken place in the given case, you can term it as extraneous reasons vide which LAC was pressurized to acquire the open land against the recommendation of the committee.
Dr Sangh Mittra
(Querist) 16 September 2016
Many Thanks Shri Makkad ji,
Lest there was any lag in my presentation I redraft the questions on the core query as under ( I hope your reply remains the same or would there be any change)-
1. Can the objections filed by the House Building Society ( filed on behalf of all its members) duly accepted as such by the Land Acquisition Collector, given a hearing thereupon- be later on negated by the State Govt in their written statement (legal arguments) to say that since the individual members did not file objections they could not challenge the acquisition?
2. Did it constitute a fraud on power, if the Administrator, MUDA; in his file Note to the State Government, wrongly described the recommendations of areas of Land to be exempted from acquisition, (actually made by the Joint Site Inspection Committee that had reversed the recommendations of the Land Acquisition Collector who had given the 5-A hearing) as the recommendations made by the Land Acquisition Collector- who had given the 5-A hearing?
The Administrator MUDA had mis-stated deliberately to mislead the Government to procure Section 6 Declaration and the State Government had failed to apply its mind.
Dr Sangh Mittra
(Querist) 17 September 2016
Awaiting Shri Makkad ji' response as to did it constitute fraud - on power or plain fraud.
Dr Sangh Mittra
(Querist) 17 September 2016
Awaiting Shri Makkad ji' response as to did it constitute fraud - on power or plain fraud.
Dr Sangh Mittra
(Querist) 17 September 2016
Makkad Sahib or any any amongst the top experts may kindly respond in the overall public interest of poor farmers .
Dr SM
Raj Kumar Makkad
(Expert) 17 September 2016
As there is no change in your query so there is no change even in my reply. Refer Khub Chand versus State of Rajasthan AIR 1960 SC 1074.
Rajendra K Goyal
(Expert) 19 September 2016
Well advised, agree with expert raj kumar makkad.
Dr Sangh Mittra
(Querist) 20 September 2016
Respected Experts,
The point has not been answered , so far, as to whether it constituted fraud , when the Administrator MUDA while submitting the File Note containing proposal for approval of the Government, to Director Urban Estate Department falsely projected the recommendations made by the Joint Site Inspection Committee ( chaired by himself- wherein the recommendations of the Land Acquisition Collector had been reversed substantially) as the recommendations made by the LAC after 5-A hearing?
Surprisingly the 5-A Report ,submitted by the LAC, was not accompanied with the proposal - all it contained was the Recommendations of the Joint Site Inspection Committee.
With prayers to all the experts to kindly give their opinions.
(I am grateful to Shri Raj Kumar Makkad jI, who kindly responded and gave his views, taking time out of his busy schedule. The issue of Fraud still looks askance at him)
Faithfully,
Dr SanghMittra, Advocate
Raj Kumar Makkad
(Expert) 22 September 2016
The matter which you are repeatedly raising despite of its repeated similar rely do not come within the ambit of fraud. Reversing of stand of any official during the discharge of his official capacity at two laces/seats/duties can never be regarded as a fraud and accordingly no action thereto can be initiated against him.
Dr Sangh Mittra
(Querist) 24 September 2016
Sir,
Is it Fraud on Power or not?
We are not keen to initiate the proceedings against any official. Can the Fraud (on Power), if its there , in your esteemed opinion made a aground to request the Hon'ble Court to declare the Acquisition of poor farmers' Land as null and void?
Thanks for continuing to reply and help us the Advocates with your vast experience.
Regards,
Dr Snaghmittra & Associates
Ms.Usha Kapoor
(Expert) 25 September 2016
Agree with expert Mr.Makkad.
Dr Sangh Mittra
(Querist) 25 September 2016
Respected Ms Kapoor Madam,
In response to the Query, affecting hundreds of Farmers,wherein, I have been trying to get the advice from the Experts of the Lawyers-club of India to make an effective argument as regards the Fraud/ Fraud on Power kindly give your advice instead of just agreeing.
Shri Makkad and other Top of the Panel Experts have ocean of knowledge and since the issue is not , yet, resolved am requesting them all to kindly clarify.
With Regards,
Dr Sanghmittra, Advocate
Raj Kumar Makkad
(Expert) 25 September 2016
A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.
Fraud is commonly understood as dishonesty calculated for advantage. A person who is dishonest may be called a fraud. In the Fraud is a specific offense with certain features.
Fraud is most common in the buying or selling of property, including real estate, Personal Property, and intangible property, such as stocks, bonds, and copyrights. State and Central statutes criminalize fraud, but not all cases rise to the level of criminality. Prosecutors have discretion in determining which cases to pursue. Victims may also seek redress in civil court.
Fraud must be proved by showing that the defendant's actions involved five separate elements:
(1) a false statement of a material fact,
(2) knowledge on the part of the defendant that the statement is untrue,
(3) intent on the part of the defendant to deceive the alleged victim,
(4) justifiable reliance by the alleged victim on the statement, and
(5) injury to the alleged victim as a result.
These elements contain nuances that are not all easily proved.
First, not all false statements are fraudulent. To be fraudulent, a false statement must relate to a material fact. It should also substantially affect a person's decision to enter into a contract or pursue a certain course of action. A false statement of fact that does not bear on the disputed transaction will not be considered fraudulent.
Second, the defendant must know that the statement is untrue. A statement of fact that is simply mistaken is not fraudulent. To be fraudulent, a false statement must be made with intent to deceive the victim. This is perhaps the easiest element to prove, once falsity and materiality are proved, because most material false statements are designed to mislead.
Third, the false statement must be made with the intent to deprive the victim of some legal right.
Fourth, the victim's reliance on the false statement must be reasonable. Reliance on a patently absurd false statement generally will not give rise to fraud; however, people who are especially gullible, superstitious, or ignorant or who are illiterate may recover damages for fraud if the defendant knew and took advantage of their condition.
Finally, the false statement must cause the victim some injury that leaves her or him in a worse position than she or he was in before the fraud.
A statement of belief is not a statement of fact and thus is not fraudulent. Puffing, or the expression of a glowing opinion by a seller, is likewise not fraudulent. For example, a car dealer may represent that a particular vehicle is "the finest in the lot." Although the statement may not be true, it is not a statement of fact, and a reasonable buyer would not be justified in relying on it.
The relationship between parties can make a difference in determining whether a statement is fraudulent.
A misleading statement is more likely to be fraudulent when one party has superior knowledge in a transaction, and knows that the other is relying on that knowledge, than when the two parties possess equal knowledge. For example, if the seller of a car with a bad engine tells the buyer the car is in excellent running condition, a court is more likely to find fraud if the seller is an auto mechanic as opposed to a sales trainee.
Misleading statements are most likely to be fraudulent where one party exploits a position of trust and confidence, or a fiduciary relationship. Fiduciary relationships include those between attorneys and clients, physicians and patients, stockbrokers and clients, and the officers and partners of a corporation and its stockholders.
A statement need not be affirmative to be fraudulent. When a person has a duty to speak, silence may be treated as a false statement. This can arise if a party who has knowledge of a fact fails to disclose it to another party who is justified in assuming its nonexistence.
For example, if a real estate agent fails to disclose that a home is built on a toxic waste dump, the omission may be regarded as a fraudulent statement. Even if the agent does not know of the dump, the omission may be considered fraudulent. This is constructive fraud, and it is usually inferred when a party is a fiduciary and has a duty to know of, and disclose, particular facts.
Fraud is an independent criminal offense, but it also appears in different contexts as the means used to gain a legal advantage or accomplish a specific crime. For example, it is fraud for a person to make a false statement on a license application in order to engage in the regulated activity.
A person who did so would not be convicted of fraud. Rather, fraud would simply describe the method used to break the law or regulation requiring the license.
Fraud resembles theft in that both involve some form of illegal taking, but the two should not be confused. Fraud requires an additional element of False Pretenses created to induce a victim to turn over property, services, or money.
Theft, by contrast, requires only the unauthorized taking of another's property with the intent to permanently deprive the other of the property. Because fraud involves more planning than does theft, it is punished more severely.
Raj Kumar Makkad
(Expert) 25 September 2016
In view of the detailed description of fraud, I am of the considered opinion that the officer concerned in your case has not made fraud rather he has misused his official capacity/position and has misstated before the higher authorities with intent to harm your interests.
Dr Sangh Mittra
(Querist) 26 September 2016
Thanks. Shri Raj Kumar Makkad Ji.
We will put across to the Hon'ble Court in the manner.
That the Administrator, MUDA misused his official capacity/position and has misstated before the higher authorities with intent to harm the interests of the Land Owners whose land was recommended to be released by the LAC.
Raj Kumar Makkad
(Expert) 26 September 2016
You are always welcome Dr. Sangh Mitra ji. If you keep on apprising us about the progress of your case in this thread then the same shall also be in the interest of justice. I want to see your case reach to ultimate goal.
Rajendra K Goyal
(Expert) 26 September 2016
The author should bring the fact of misuse of powers with related proofs on court file.
Guest
(Expert) 27 September 2016
@ Raj Makkad Sir ,
Thanks I was studying about fraud on court etc. your inputs for fraud was indeed better for my understanding about Fraud
Dr Sangh Mittra
(Querist) 10 October 2016
Sir/ Madam,
Respected Shri Raj Kumar Makkad ji has been kind to remark:
"You are always welcome Dr. Sangh Mitra ji. If you keep on apprising us about the progress of your case in this thread then the same shall also be in the interest of justice. I want to see your case reach to ultimate goal."
The Hon'ble Court has been seized about the similar Land Acquisition Notification and about 30 Writ Petitions have been clubbed.
None of those Petitions had raised the Law Points and the issue of Fraud on Power though these raised non application of mind, and far in excess of acquisition as was required. The Court has been asking MUDA and Town Planning to file Affidavit as the issue raised in those Petitions are that private builders were allowed to purchase lands in the area which was notified under Section 4. Further that more than 60% land had been released from the purpose. The Private companies, in those Petitions, which had been given Licenses to develop colonies, are also parties therein.
Our Petition has not been clubbed but the Government Counsel requested the Court to list it on the same date as those 30 Petitions. The NDOH is 14.12.2016.
Dont know whether we should put a CM for early hearing, which would not be granted , or wait for the date.
In the meantime I would request any input in the form of case law etc.
With Regards,
Dr Sanghmittra, Advocate
