Shri Mandir Sita Ramji Vs. Lt.
Governor of Delhi & Ors  INSC 134 (6 August 1974)
MATHEW, KUTTYIL KURIEN MATHEW, KUTTYIL KURIEN
RAY, A.N. (CJ)
CITATION: 1974 AIR 1868 1975 SCR (1) 597 1975
SCC (4) 298
R 1976 SC2095 (26)
Land Acquisition Act (1 of 1894) s.
5A--Opportunity of being heard to the objector to notification under s.
4--Should be given by the Collector and not by appropriate Government.
The Delhi Administration issued a
notification under s. 4 of the Land Acquisition Act, 1894, stating that certain
land was needed for a public purpose. The appellant-Society filed an objection
under s. 5A that a part of the land belonged to a religious trust. The Land
Acquisition Collector then called for a report, but later, without any
consciousness of his having done so, submitted his report to the Delhi
Administration stating that the appellant had raised an objection and the
decision may be taken after inspection of the site. The Delhi Administration
did not give any hearing to the appellant but issued the declaration under s. 6
including the land with respect to which the appellant filed objection.
The appellant challenged the s.
6-notification and a Single Judge of the High Court quashed it. On appeal, the
Divisional Bench came to the conclusion that the appellant should have been
given an opportunity of being heard and directing the Delhi Administration to
give an opportunity of being heard to the appellants adjourned the disposal of
The first respondent thereafter heard the
appellant and rejected its objection. The Divisional Bench then took up the
appeal and dismissed the writ petition holding that it was not necessary that
the Land Acquisition Collector should have heard the appellant under s. 5A.
Allowing the appeal to this Court, and
quashing the declaration under s. 6,
HELD : (1) The power to hear the objection
under S. 5A is that of the Collector and not of the appropriate Government;
and the duty of affording such opportunity of
being heard by the Collector under the section is mandatory. Therefore, a
decision by the Government on the objection, when the Collector afforded no
opportunity of being heard, to the objector, would not be proper.[599D-E]
(2)Merely because the Government may not accept the Collector's recommendation,
it could not be said that he need not make his recommendation and leave it to
the Government to decide the matter. The fact that the Collector is not the
authority to decide on the objection does not exonerate him from his duty to hear
the objector and make his recommendation. [599E-F] (3)The Divisional Bench of
the High Court was wrong in holding that the objection was only a question of
law and that therefore the Collector could decline to make his report and leave
it to the appropriate government to decide the question. The objection raised
is a mixed question of law and fact and the Land Acquisition Collector should
have inquired into it and his failure to do so would show that he declined to
exercise his jurisdiction under the section.
When a procedure is prescribed by the
legislature, it is not for the Court to substitute a different one according to
its notions of justice. [600C-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1726 of 1972.
From the Judgment and Order dated the 9th
May, 1972 of the Delhi High Court at New Delhi in Letters Patent Appeal No.
377 of 1971.
J. K. jain and T. V. S. Narasimhachari, for
L. N. Sinha, Solicitor General of India, S.
N. Prasad, and R.N. Sachthey, for the respondents No. 1-3.
598 The Judgment of the Court was delivered
by MATHEW, J.-The appellant filed a writ petition before the High Court of
Delhi for quashing a notification dated November 7, 1968, issued under s. 6 of
the Land Acquisition Act, 1894 (hereinafter called the 'Act'). A learned Single
Judge of the Court quashed the notification mainly on the ground that the Land
Acquisition Collector gave no opportunity to the appellant of being heard in
respect of the objections filed under s. 5A of the Act. The respondent (Lt. Governor
of Delhi) filed a Letters Patent Appeal before a Division Bench. The Division
Bench allowed the appeal. This appeal, by certificate, has been filed against
The Delhi Administration issued a
notification under s. 4 of the Act on November 13, 1959 stating that land
measuring about 34070 acres was needed for a public purpose. The notification
specifically excluded from its purview "land under graveyards, tombs,
shrines and the land attached to religious institutions and wakf property".
The appellant, a society registered under the Societies Registration Act 21 of
1960, filed an objection under s. 5A of the Act in respect of 324 bighas of
land in village Karkar Duma. The objection was that the land in question
belonged to a religious trust viz., Mandir Sita Ramji, and was exempted from
the purview of the notification. The Collector submitted his report on the
objection to the Delhi Administration on August 18, 1962 and thereafter on
November 7, 1968, the Delhi Administration issued the declaration under s. 6 of
the Act including the land in respect of which Mandir Sita Ramji had filed
objection under s. 5A of the Act.
The objection filed by the appellant before
the Land Acquisition Collector was not traceable in the office of the Land
Acquisition Collector. But on the date fixed for hearing viz., July 27, 1962, a
copy of the objection was found in the records on which there was the following
63 V. Karkar Duma.
"Please report if this property is that
of Shri Mandir Sita Ramji, a charitable institution and is exempt from the
notification." The Land Acquisition Collector, without any further
hearing, and without any consciousness of his having called for a report,
submitted his report dated August 18, 1962 and in that report he stated that an
objection was received from Shri Mandir Sita Ramji. There is no mention in that
report that he received any report in pursuance to his order on the copy of the
objection petition or that any personal or other kind of enquiry was made in
respect of the land in question subsequent to July 27, 1962. In that report,
the Collector, after noting the lands and houses in respect of which Shri
Mandir Sita Ramji had filed objections, made the following report:
" Decision may kindly be taken after the
inspection of the site".
599 Thereafter, it is common ground, that the
Delhi Administration did not give a hearing to the appellant before publishing
the declaration. It was on the basis of these circumstances that the learned
Single Judge and the Division Bench came to the conclusion that the appellant
was given no opportunity of being heard under s. 5A of the Act.
When the appeal came up for hearing before
the Division Bench, the Division Bench felt that an opportunity of being heard
should have been given to the appellant and so the Bench directed the Delhi
Administration to give the appellant an opportunity of being heard on the
objection and send its report. The appellant was heard and the Lt.
Governor, by his order dated April 27, 1972,
rejected the objection. Thereafter, the appeal was again taken up for hearing
and the Division Bench came to the conclusion that it was not necessary that
the Land Acquisition Collector should have heard the appellant under s. 5A and
that there was no substance in the contention of the appellant that the land in
question was attached to a religious institution and, therefore, allowed the
appeal and dismissed the writ petition.
The learned Single Judge allowed the writ
petition on the basis that the appellant had no opportunity of being heard by
the Collector under s. 5A. The duty to afford such an opportunity is mandatory.
A decision by the Government on the objection, when the Collector afforded no
opportunity of being heard to the objector, would not be proper. The power to
hear the objection under s. 5A is that the Collector and not of the appropriate
Government. It is no doubt true that the recommendation of the Land Acquisition
Collector is not binding on the Government. The Government may choose either to
accept the recommendation or to reject it; but the requirement of the section
is that when a person's property is proposed to be acquired, he must be given
an opportunity to show cause against it. Merely because the Government may not
choose to accept the recommendation of the Land Acquisition Collector, even
when he makes one, it cannot be said that he Reed not make the recommendation
at all but leave it to the Government to decide the matter. In other words, the
fact that the Collector is not the authority to decide the objection does not
exonerate him from his duty to hear the objector on the objection and make the
The objection in substance was that the lands
in question were attached to a religious institution and were therefore, immune
from being acquired under the notification. That was how the Land Acquisition
Collector understood the objection.
The objection raised a mixed question of law
and fact and it was because of that the Collector called for a report. To say,
as the Division Bench has done, that the objection raised only a question of
law and, therefore, the Collector could decline to make the recommendation and
leave it to the appropriate Government to decide the question is neither here
nor there, in as much as the High Court itself has stated that the question
whether the land is attached to the religious institution would depend upon
resolution of questions of fact. The Division Bench said:
600 "Thus it is the manner of the
utilisation of land which will determine whether it was 'attached to' or not in
the present case. In as much as nothing has been shown that the land was
utilised for the purpose of the temple or the institution or that its income
was so utilised, it must be held that the mere contiguity of the land to the
temple of Shri Hanuman or its ownership by Shree Sita Ram Bhandar/Mandir Sita
Ramji at Pilani would not make the land in question 'attached to' any one of
these." If this is so, it is difficult to understand why the objection
raised only a question of law which could be left to the decision of the
appropriate Government without the recommendation by the Collector. As we have
said, the objection was that the lands belonged to the religious institution
and would come within the purview of the exempted class of lands in the notification.
In substance, this was an objection that the lands were attached to the
religious institution. As the objection raised questions of fact, the Land
Acquisition Collector should have enquired into them and should have made his
recommendation as provided in s. 5A. The failure of the Land Acquisition
Collector to inquire into the objection after giving the appellant an
opportunity of being heard would show that he declined to exercise his
jurisdiction under the section. As we said, the fact that the ultimate decision
has to be made by the State Government did not relieve the Collector from his
statutory duty to enquire into the objection and make the recommendation. We
see no reason why the Division Bench should have departed from the procedure
prescribed by the statute. The observance of the procedure laid down by statute
before depriving a person of his property is necessary to generate the feeling
that rule of law prevails in this country. When a procedure is prescribed by
the legislature, it is not for the court to substitute a different one
according to its notion of justice. When the legislature has spoken, the judges
cannot afford to be wiser.
We quash the declaration published under s. 6
of the Act and direct the Land Acquisition Collector to enquire into the
objection after giving an opportunity to the appellant of being heard and make
the necessary recommendation to the appropriate Government. The appropriate
Government will proceed further in the light of its decision on the
recommendation. We set aside the order of the Division Bench and allow the
appeal but make no order as to costs.