Om
Parkash Vs. Union of India & Ors. [2010] INSC 91 (8 February 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1415 OF
2010 [Arising out of S.L.P.(C)No.9389 of 2005] Om Parkash ....Appellant Versus
Union of India & Ors. ....Respondents W I T H C.A.No.1515 of 2010 [arising
out of SLP(C) No.9498 of 2005];
C.A.No.1516
of 2010 [arising out of SLP(C) No.10871 of 2005];
C.A.No.1517
of 2010 [arising out of SLP(C) No.18087 of 2005];
C.A.No.1518
of 2010 [arising out of SLP(C) No.23338 of 2005];
C.A.No.1519
of 2010 [arising out of SLP(C) No.22867 of 2005];
C.A.No.1520
of 2010 [arising out of SLP(C) No.22953 of 2005];
C.A.No.1521
of 2010 [arising out of SLP(C) No.23339 of 2005];
C.A.No.1522
of 2010 [arising out of SLP(C) No.22971 of 2005];
C.A.No.1523
of 2010 [arising out of SLP(C) No.23083 of 2005];
C.A.No.1524
of 2010 [arising out of SLP(C) No.23390 of 2005];
C.A.No.1525
of 2010 [arising out of SLP(C) No.24910 of 2005];
C.A.No.1526
of 2010 [arising out of SLP(C) No.24934 of 2005];
C.A.No.1527
of 2010 [arising out of SLP(C) No.25786 of 2005];
C.A.No.1528
of 2010 [arising out of SLP(C) No.25789 of 2005];
C.A.No.1529
of 2010 [arising out of SLP(C) No.25790 of 2005];
C.A.No.1530
of 2010 [arising out of SLP(C) No.25792 of 2005];
C.A.No.1531
of 2010 [arising out of SLP(C) No.25794 of 2005];
C.A.No.1532
of 2010 [arising out of SLP(C) No.25795 of 2005];
C.A.No.1533
of 2010 [arising out of SLP(C) No.25895 of 2005];
C.A.No.1534
of 2010 [arising out of SLP(C) No.25168 of 2005];
C.A.No.1535
of 2010 [arising out of SLP(C) No.1621 of 2006];
C.A.Nos.1536-38
of 2010 [arising out of SLP(C) Nos.1608-1610 of 2006];
C.A.No.1539
of 2010 [arising out of SLP(C) No.25836 of 2005];
C.A.No.1540
of 2010 [arising out of SLP(C) No.1611 of 2006];
C.A.No.1541
of 2010 [arising out of SLP(C) No.1612 of 2006];
C.A.No.1542
of 2010 [arising out of SLP(C) No.1613 of 2006];
C.A.No.1543
of 2010 [arising out of SLP(C) No.1614 of 2006];
C.A.No.1544
of 2010 [arising out of SLP(C) No.1616 of 2006];
C.As @
SLP(C)No.9389/05 etc. (contd.) - 2 - C.A.No.1545 of 2010 [arising out of
SLP(C) No.1617 of 2006];
C.A.No.1546
of 2010 [arising out of SLP(C) No.26418 of 2005];
C.A.No.1547
of 2010 [arising out of SLP(C) No.26431 of 2005];
C.A.No.1548
of 2010 [arising out of SLP(C) No.26738 of 2005];
C.A.No.1549
of 2010 [arising out of SLP(C) No.1618 of 2006];
C.A.No.1550
of 2010 [arising out of SLP(C) No.26537 of 2005];
C.A.No.1551
of 2010 [arising out of SLP(C) No.26881 of 2005];
C.A.No.1552
of 2010 [arising out of SLP(C) No.26900 of 2005];
C.A.No.1553
of 2010 [arising out of SLP(C) No.1619 of 2006];
C.A.No.1554
of 2010 [arising out of SLP(C) No.4552 of 2010] (CC No.
553);
C.A.No.1555
of 2010 [arising out of SLP(C) No.4553 of 2010] (CC No.
757);
C.A.No.1556
of 2010 [arising out of SLP(C) No.1874 of 2006];
C.A.No.1557
of 2010 [arising out of SLP(C) No.4554 of 2010] (CC NO.
993);
C.A.No.1558
of 2010 [arising out of SLP(C) No.4075 of 2006];
C.A.No.1559
of 2010 [arising out of SLP(C) No.4164 of 2006];
C.A.No.1560
of 2010 [arising out of SLP(C) No.4642 of 2006];
C.A.No.1561
of 2010 [arising out of SLP(C) No.6077 of 2006];
C.A.No.1562
of 2010 [arising out of SLP(C) No.6078 of 2006];
C.A.No.1563
of 2010 [arising out of SLP(C) No.6016 of 2006];
C.A.No.1564
of 2010 [arising out of SLP(C) No.6089 of 2006];
C.A.No.1565
of 2010 [arising out of SLP(C) No.6069 of 2006];
C.A.No.1566
of 2010 [arising out of SLP(C) No.7483 of 2006];
C.A.No.1567
of 2010 [arising out of SLP(C) No.8261 of 2006];
C.A.No.1568
of 2010 [arising out of SLP(C) No.11240 of 2006];
C.A.No.1569
of 2010 [arising out of SLP(C) No.6138 of 2006];
C.A.No.1570
of 2010 [arising out of SLP(C) No.6140 of 2006];
C.A.No.1571
of 2010 [arising out of SLP(C) No.13138 of 2006];
C.A.No.1572
of 2010 [arising out of SLP(C) No.15800 of 2006];
C.A.No.1573
of 2010 [arising out of SLP(C) No.15804 of 2006];
C.A.No.1574
of 2010 [arising out of SLP(C) No.258 of 2007];
C.A.No.1575
of 2010 [arising out of SLP(C) No.12932 of 2007];
C.A.No.1576
of 2010 [arising out of SLP(C) No.4558 of 2010] (CC No.1003);
C.A.No.1577
of 2010 [arising out of SLP(C) No.4559 of 2010] (CC No.1931);
C.A.No.1578
of 2010 [arising out of SLP(C) No.18566 of 2007];
C.A.No.1579
of 2010 [arising out of SLP(C) No.7102 of 2008];
C.A.No.1580
of 2010 [arising out of SLP(C) No.20180 of 2007];
C.A.No.1581
of 2010 [arising out of SLP(C) No.4419 of 2007];
C.A.No.1582
of 2010 [arising out of SLP(C) No.20591 of 2006];
C.A.No.1583
of 2010 [arising out of SLP(C) No.4420 of 2007];
C.A.No.1584
of 2010 [arising out of SLP(C) No.4421 of 2007];
C.A.No.1585
of 2010 [arising out of SLP(C) NO.4422 of 2007];
C.As @
SLP(C)No.9389/05 etc. (contd.)
- 3 -
C.A.No.1586 of 2010 [arising out of SLP(C) No.4423 of 2007];
C.A.No.1587
of 2010 [arising out of SLP(C) No.137 of 2007];
C.A.No.1588
of 2010 [arising out of SLP(C) No.167 of 2007];
C.A.No.1589
of 2010 [arising out of SLP(C) No.11290 of 2007];
C.A.No.1590
of 2010 [arising out of SLP(C) No.18822 of 2007];
C.A.Nos.1591-92
of 2010 [arising out of SLP(C) Nos.4565-66 of 2010] (CC Nos.10441-10442);
C.A.No.1593
of 2010 [arising out of SLP(C) No.6912 of 2006];
C.A.No.1594
of 2010 [arising out of SLP(C) No.6913 of 2006];
C.A.No.1595
of 2010 [arising out of SLP(C) No.7690 of 2007];
C.A.No.1596
of 2010 [arising out of SLP(C) No.9394 of 2007];
C.A.No.1597
of 2010 [arising out of SLP(C) No.25103 of 2005];
C.A.No.1598
of 2010 [arising out of SLP(C) No.25119 of 2005];
C.A.No.1599
of 2010 [arising out of SLP(C) No.25141 of 2005];
C.A.No.1600
of 2010 [arising out of SLP(C) No.25417 of 2005];
C.A.No.1601
of 2010 [arising out of SLP(C) No.25436 of 2005];
C.A.No.1602
of 2010 [arising out of SLP(C) No.25440 of 2005];
C.A.No.1603
of 2010 [arising out of SLP(C) No.21662 of 2005];
C.A.No.1604
of 2010 [arising out of SLP(C) No.22607 of 2005];
C.A.No.1605
of 2010 [arising out of SLP(C) No.22722 of 2005];
C.A.No.1606
of 2010 [arising out of SLP(C) No.4573 of 2010](CC No.
711);
C.A.No.1607
of 2010 [arising out of SLP(C) No.4575 of 2010] (CC No.
779);
C.A.No.1608
of 2010 [arising out of SLP(C) No.4579 of 2010] (CC No.
803);
C.A.No.1609
of 2010 [arising out of SLP(C) No.4580 of 2010] (CC No.
850);
C.A.No.1610
of 2010 [arising out of SLP(C) No.4581 of 2010] (CC NO.
906);
C.A.No.1611
of 2010 [arising out of SLP(C) No.4583 of 2010] (CC NO.
928);
C.A.No.1612
of 2010 [arising out of SLP(C) No.4584 of 2010] (CC No.
963);
C.A.No.1613-1614
of 2010 [arising out of SLP(C) No.15791-15792 of 2009];
C.A.No.1615
of 2010 [arising out of SLP(C) No.27029 of 2008];
C.A.No.1616
of 2010 [arising out of SLP(C) No.9504 of 2009];
C.A.No.1617
of 2010 [arising out of SLP(C) No.538 of 2007];
C.A.No.1618
of 2010 [arising out of SLP(C) No.4586 of 2010] (CC No.10061);
C.A.No.1619
of 2010 [arising out of SLP(C) No.25787 of 2005];
C.A.No.1620
of 2010 [arising out of SLP(C) No.4588 of 2010] [CC 13301]; and C.A.No.1621 of
2010 [arising out of SLP(C) No.4589 of 2010] [CC 13568].
C.As @
SLP(C)No.9389/05 etc. (contd.)
- 4 -
Deepak
Verma, J.
1.
Permission to file Special Leave Petitions is granted.
2. Delay
condoned. Substitution allowed.
3. Leave
granted.
4. For
planned development of Delhi, Lt. Governor issued notifications under Section 4
of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') on
05.11.1980 and 25.11.1980 to acquire more than 50,000 bighas of land situated
in 13 different villages falling within Delhi.
5. The
land owners, feeling aggrieved by the issuance of the said notifications under
Section 4 of the Act, filed writ petitions in the High Court of Delhi
challenging the same on variety of grounds. The said judgment rendered on
15.11.1983 in the case of Munni Lal & Ors. v. Lt. Governor of Delhi &
Ors. is
reported in ILR (1984) I Delhi 469. After considering the arguments advanced by
learned counsel for the petitioners - Munni Lal & Ors., the Division Bench
of the Delhi High Court came to the conclusion that the writ petitions
challenging the validity of the notifications dated 05.11.1980 and 25.11.1980
issued under Section 4 of the Act, deserve to be dismissed and C.As @
SLP(C)No.9389/05 etc. (contd.) accordingly were dismissed. We have been given
to understand that against this judgment and order, no appeal was filed and
this judgment thus attained finality.
6. These
appeals arise out of Judgment and Order passed by Delhi High Court in Writ
Petitions preferred by appellant and other similarly situated appellants under
Article 226 of the Constitution of India, wherein challenge was primarily and
basically to the declaration/notifications issued by Delhi Administration under
Section 6 of the Act.
7. The
said petitions having been dismissed by different Orders passed by Division
Benches of Delhi High Court, these appellants are before us challenging the
same on variety of grounds.
8. The
cases have a long and chequered history. For the sake of convenience, we are
taking the facts of the civil appeal of India and Others as issue involved in
these cases is almost identical and common.
9. Shorn
of unnecessary details, the brief facts of the case are mentioned hereinbelow.
10.
Notifications under Section 4 of the Act were issued on two different dates,
viz., 5.11.1980 and 25.11.1980.
11.
Pursuant thereto, further declarations/notifications as C.As @ SLP(C)No.9389/05
etc. (contd.) - 6 - contemplated under Section 6 of the Act were issued on
20.5.1985, 6.6.1985, 7.6.1985 and 26.2.1986.
12.
Admittedly, appellant and several such other appellants are in possession as
owners of different parcels of land situated in 13 villages, within Delhi.
13.
Notifications issued under Section 4 for planned development of Delhi had a
caveat that three types of land were exempted from the purview of these
notifications i.e government land, land already notified under Section 4 or 6
of the Act or land in respect of which lay-out plans/building plans were
sanctioned by Municipal Corporation of Delhi before 05.11.1980.
14. It is
not in dispute that initially appellants had not challenged the notifications
issued under Section 4 of the Act, by filing writ petitions or resorting to any
other remedy in accordance with law.
15.
Obviously, there could not have been any order of stay passed by any court in
their favour. In other words, there was no order of restraint from issuance of
declaration under Section 6 of the Act.
16.
According to the appellants, the Act provides that the said declaration should
have been issued within a period of three years from the date of issuance of
notifications under C.As @ SLP(C)No.9389/05 etc. (contd.) Section 4 of the Act,
that is to say, positively on or before 24.11.1983. But no such declaration
having been issued on or before 24.11.1983, i.e., within the statutory period
of three years, it is contended that acquisition is illegal and void qua
appellants' lands. In the aforesaid appeal, last declaration under Section 6 of
the Act was finally issued on 07.06.1985, which according to the appellant, was
clearly beyond statutory period of three years. Thus, whole proceedings of
acquisition should be rendered illegal and void ab initio. However, the last
declaration was still issued on 26.2.1986.
17. It
has also been appellants' case that the stay order granted in favour of the
other land-owners, who had challenged either the notification issued under
Section 4 of the Act or the declaration under Section 6 of the Act, would not
be applicable or operative to the appellants' land as obviously it would be
confined only to those who had approached the Court and were granted stay.
18. Like
appellant, there were many such land-owners who had challenged the said
declaration/notification issued under Section 6 of the Act before the High
Court of Delhi and their petitions having been allowed on 14.8.1988, appellant
claimed parity on the ground that due to some bona-fide mistake, the C.As @
SLP(C)No.9389/05 etc. (contd.) appellant's petition which was filed in the
year 1987 could not be listed along with batch matters but subsequently,
appellant's petition came to be dismissed. Thus, for this reason he should not
be put to an irreparable loss of losing his land.
19.
Appellant's petition came up for hearing before Division Bench of High Court of
Delhi on 25.11.2004 and on the said date following order of dismissal came to
be passed:
"We
find that the issue raised in the petition with regard to validity of the
Declaration issued under Section 6 of the said Act, stands concluded against
the petitioner by the decision of the Apex Court in Abhey Ram SCC 421 (which
approved the full Bench decision of this court in B.R. Gupta's case.
AIR 1987
Delhi 239 on the issue that the declaration under Section 6 was not beyond
Singh Uban and Ors. (1990) 7 SCC 44, wherein their Lordships were pleased to
observe that those who had not filed objections under Section 5(A) of the said
Act could not be allowed to contend either that Section 5 enquiry was bad, or
that Section 6 Declaration must be struck down and that the Section 4
notification would lapse. Admittedly, in the present case, no objections have
been filed by the petitioner under Section 5 (A) of the Act.
Consequently,
the writ petition and application for interim relief are dismissed and interim
order dated 9.2.1987 stands vacated."
Sd/- Sd/-
C.As @ SLP(C)No.9389/05 etc. (contd.) 20. Perusal of the aforesaid order would
make it abundantly clear that while considering the appellant's petition, High
Court was of the opinion that in the light of the opinion reported in AIR 1987
Delhi 239 (refered to as B.R.Gupta-I), affirmed by this Court in Abhey Ram
(Dead by LRs) and Ors.
22.04.1997,
holding therein that declaration issued under Section 6 was not beyond time.
21.
Impugned order further shows that it placed reliance on another judgment of
this Court reported in (1990) 7 SCC 44, it has been held that all those
land-owners who had not preferred objections under Section 5A of the Act, could
not be allowed to contend that either enquiry under Section 5A of the Act was
bad or the declaration issued under Section 6 must be struck down on the ground
of limitation or consequently, notification issued under Section 4 of the Act
would stand lapsed. Thus, the appellant's petition was not entertained and
ultimately came to be dismissed.
22. It
has neither been disputed here nor before the High Court that some of the
appellants herein and many similarly situated land-owners had not preferred
objections under C.As @ SLP(C)No.9389/05 etc. (contd.) Section 5A of the Act.
There are other appeals, in which objections were preferred but have been
decided against them or even though objections were preferred but were not
pressed, on account of subsequent developments that have taken place. We would
deal with those type of matters little later.
23. Mr.
P.P. Rao, learned senior counsel for appellant contended that in this batch of
appeals, broadly three categories can be formulated :
Category
No. 1 - where land-owners had admittedly not filed objections under Section 5A
of the Act, but essentially, the challenge was only to declaration issued under
Section 6 of the Act, being time-barred.
Category
No. 2 - even though land-owners had preferred objections under Section 5A of
the Act, wherein an enquiry was held, but the same were rejected.
Category
No. 3 - during the pendency of the objections under Section 5A of the Act, some
of the land-owners had sold their lands. Pursuant to the execution of said
sale-deeds in favour of the vendees, they continued to press objections preferred
by their vendors but the same were also rejected.
24. It
has been fairly conceded by learned senior counsel for appellant that he had
neither challenged the notification C.As @ SLP(C)No.9389/05 etc. (contd.) - 11
- issued under Section 4 of the Act nor had preferred any objection under
Section 5A of the Act independently. Thus, obviously there could not have been
any stay order granted in his favour by any court. Therefore, ordinarily, the
period of limitation would be three years as contemplated under Section 6 of
the Act (first proviso read with Explanation 1 appended thereto).
25. To
appreciate the aforesaid arguments, it is necessary to understand the true and
correct import of Section 6 of the Act, reproduced hereinbelow :
"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 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 and 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 (1), irrespective of whether one report or different reports has or
have been made (wherever required) under Section 5A, sub-section (2):
Provided
that no declaration in respect of any particular land covered by a notification
under section 4, sub-section (i) published after the commencement of the C.As
@ SLP(C)No.9389/05 etc. (contd.) - 12 - 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 (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 situated 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 dates of such
publication and the giving of such public, notice being hereinafter referred
to as the date of publication of the declaration), and such C.As @
SLP(C)No.9389/05 etc. (contd.) - 13 - 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."
26. It
has strenuously been contended by learned senior counsel Shri P.P. Rao that
even if appellant had not preferred any objection under Section 5A of the Act,
his right to challenge issuance of declaration under Section 6 of the Act after
the stipulated period of limitation, cannot be taken away, especially in the
light of the provisions contained in Article 300A of the Constitution of India.
It was also submitted by him that both rights are independent and accordingly
can be invoked separately. He also submitted that language of Articles 21 and
300A of the Constitution is almost identical, thus, no person should be
deprived of his property save by authority of law.
27. We
were also taken through Article 17 of Universal Declaration of Human Rights,
which safeguards the interest of persons in properties. He, therefore,
submitted that if the C.As @ SLP(C)No.9389/05 etc. (contd.) - 14 - property of
the appellant is sought to be acquired in this fashion then it would tantamount
to violation of human rights as guaranteed under Article 17 of the Universal
Declaration.
28. A
further point has also been tried to be hammered before us that Land Acquisition
Act being expropriatory in nature, its provisions deserve to be construed
strictly and each and every step required to be taken by the respondents must
be strictly adhered to.
29.
Lastly, it was submitted by him that in any case, Government is not likely to
suffer any loss, much less an irreparable loss, even if the land owned,
possessed and occupied by the appellant is exempted from acquisition whereas
the appellant would suffer a greater loss and injury as with long passage of
time he has constructed his house, is residing therein for long number of years
and acquisition thereof would lead to serious consequences and would be
disastrous to him and other similarly situated land owners.
In other
words, it has been contended that equitable justice is required to be meted out
to the appellant and this Court shall ensure that no injustice is rendered to
this appellant and other such hundreds of appellants.
30. In
the light of the aforesaid contentions, learned senior counsel for the
appellant submitted that following C.As @ SLP(C)No.9389/05 etc. (contd.) - 15 -
questions of law would arise in this and the connected appeals:
(i)
Whether proposition of law propounded in Delhi (referred to as No.1) has
correctly been understood by the Division Bench in the impugned order? (ii)
Whether the judgment in the case of Abhey Ram and the Full Bench opinion of
Delhi High Court in B.R.Gupta-I, (Supra) has indirectly been over-ruled in the
Nadu and Others (1995) 5 SCC 206? (iii) If, that being the legal position, even
though Abhey Ram's case (supra) rendered by three learned Judges of this Court,
can still be interpreted to grant benefit to the appellant as otherwise great
injustice would be caused to appellant.
31. Shri
P.N. Lekhi, learned senior counsel appearing for some of the appellants has
taken us through the history of the Act and the various amendments which have
been incorporated from time to time. He has also advanced the same arguments as
have been put forth by Mr. P.P. Rao, that the effect of stay order granted in
other matter should not be logically and C.As @ SLP(C)No.9389/05 etc. (contd.)
- 16 - legally made applicable to those who had not even approached the Court,
as it would always be an order of stay in personam and not an order in rem.
32. It is
brought to our notice that he appears for all those appellants, who are
subsequent purchasers, after issuance of declaration under Section 6 of the
Act. Sale Deeds in favour of these appellants have been executed between the
period from 18.11.1988 to 22.4.1997, i.e., the period between the date of
judgment of the Full Bench of the High Court in the case of B.R. Gupta-I and
the date of judgment of this Court in the case of Abhey Ram (supra). According to
him, this was the eclipse period as in some of the matters, notifications under
Section 4 were quashed on account of failure of Delhi Administration to issue
further declarations under Section 6 of the Act, within a period of three years
from the date of issuance of notifications under Section 4 of the Act. Since
even thereafter, no steps were taken by Delhi Administration to issue a fresh
notification under Section 4 of the Act, the subsequent purchasers were fully
justified in purchasing the lands from previous owners. Thus, all purchases by
them between the aforesaid period would be said to have been made during the
eclipse period and therefore, they should be called owners rather than
subsequent purchasers.
C.As @
SLP(C)No.9389/05 etc. (contd.) - 17 -
33. He
has also put forth an argument that prior to coming into force of Amendment Act
of 1984, there was no exclusion clause appended to Section 6, by way of an
explanation and therefore, exactly three years' period has to be computed
between the date of publication of notification under Section 4 of the Act and
further declaration under Section 6 of the Act for determining as to whether
the same had been issued within the aforesaid period or not. In other words, he
has contended that irrespective of the fact that there was any stay or there
was no stay, in either case, the period of three years should be calculated
from the actual date of publication of notification issued under Section 4 of
the Act till the date of publication of notification under Section 6 of the
Act.
34. Dr.
Rajeev Dhawan, learned senior counsel appearing in some appeals contended that
primarily petitions of these appellants have been dismissed on the ground of
laches. He has reported in 37 (1989) DLT 150 [hereinafter referred to as 'B.R.
Gupta-II'], notification with regard to acquisition of lands situated in 11
villages was quashed and in subsequent judgment, notification with regard to
two more villages was quashed. Therefore, there was no occasion on the part of
C.As @ SLP(C)No.9389/05 etc. (contd.) - 18 - these appellants to have continued
to prosecute their objections preferred under Section 5A of the Act.
35.
According to him, from the year 1989 to 1997, there was an absolute silence
with regard to the acquisition, which had initially commenced in the year 1980.
Therefore, no prudent man would have taken legal action during the aforesaid
period.
He,
therefore, contended that appellants were justified in not taking any action
during the aforesaid period. Only when fresh proceedings commenced with regard
to acquisition, appellants were prompt enough to file writ petitions either in
the year 2000 or 2002. Thus, delay having been explained properly, the Division
Bench has grossly erred in dismissing the same on the ground of laches.
36. Our
attention has been drawn to the letter of Mrs. Gita Sagar, Joint Secretary, (L
& B) dated 31.3.1989 mentioning therein that in the light of the Division
Bench Judgment of Delhi High Court in B.R. Gupta-II quashing the notifications
issued under Section 4 of the Act, nothing more was required to be done and
acquisition proceedings be dropped. This further stood fortified vide
subsequent circular issued by Delhi Administration on 07.12.1999. According to
him, thus the appellants were entirely justified in not taking any action. In
other words, he contended that from the year 1990 C.As @ SLP(C)No.9389/05 etc.
(contd.) - 19 - Gurdip Singh Uban reported in (1999) 7 SCC 44 held the field
whereby notification issued under Section 4 of the Act was quashed and no
further action was taken by Delhi Administration.
37. Thus,
any prudent man would be given to understand that nothing more was required to
be done and therefore they sat quiet over the matters. He, therefore, contended
that dismissal of appellants' writ petitions on the ground of laches was wholly
unjustified and uncalled for, more so, when the reasons for the delay were
fully assigned satisfactorily.
38.
Arguments were advanced by him on the Doctrine of 'Legitimate Expectation'. He
also contended that the right to hold property as envisaged under the
Constitution being constitutional right conferred under Article 300A, cannot be
permitted to be taken away without authority of law. Even though, it is not a
Fundamental Right nevertheless, it continues to be a constitutional right, and
such right was never taken away from Article 14 of the Constitution.
39. It is
further submitted by him that Sections 5A and 6 of the Act cannot be separated
as the right envisaged under Section 5A is a collective right and cannot be
equated with
Section 6. It has also been argued on the "Doctrine of Public C.As @
SLP(C)No.9389/05 etc. (contd.) - 20 - Law" to contend that there was no
case for dismissal of the petitions of these appellants on the ground of
laches.
According
to him, it would amount to discrimination to these appellants vis-a-vis the
other land-owners who have been extended the benefit of quashment of
notifications, thereby exempting their lands from being acquired, therefore,
the same cannot be allowed to stand.
40. Mr.
Mukul Rohtagi, learned Senior Counsel appearing for some other appellants
contended that he is appearing for those land-owners, who had actually filed
their objections under Section 5A of the Act and belong to village Shayoorpur.
The said
petitions were filed in the year 1985.
41.
However, unfortunately, when the said petitions were heard on 3.3.2005, learned
counsel for the appellants was absent as a result whereof, the petitions came
to be dismissed. Thus, they were constrained to file review petitions but same
also came to be dismissed on 27.4.2006.
42. It
has further been contended that on account of difference of opinion between
Hon'ble Mr. Justice Swatanter Kumar (as he then was) and Hon'ble Mr. Justice
Madan B. Lokur on the question of import and interpretation of Section 5A of
the Act, the matter was referred to Hon'ble Mr. Justice T.S. Thakur (as he then
was). Hon'ble Mr.Justice Thakur agreed with C.As @ SLP(C)No.9389/05 etc.
(contd.) - 21 - the views expressed by Hon'ble Mr. Justice Madan B. Lokur.
While
concurring, he held that hearing as contemplated under Section 5A of the Act
would mean an effective hearing and it is not an empty formality and the
provision thereof has to be strictly adhered to and principles of natural
justice have to India & Ors. is reported in 137 (2007) DLT 14.
43. Mr.
Mukul Rohtagi, strenuously contended before us that in B.R. Gupta-II, it was
specifically held with regard to land-owners of Shayoorpur that the enquiry was
bad and invalid. The report as sent by Collector to the Lt. Governor and his
satisfaction thereon was also bad. If this was already held so by Division
Bench of the said Court then in subsequent orders passed by Division Bench, it
could not have been over-ruled by the said Bench, it being a coordinate Bench.
It was also contended by learned counsel that certain observations made in
B.R.Gupta (supra) and Abhey Ram (supra) would not constitute ratio decidendi as
they could, at best, be treated as obiter which is not binding on this Court.
44. It was
reiterated by learned Senior Counsel that the declaration under Section 6 of
the Act, having not been issued within a period of three years from the date of
issuance of notification under Section 4 of the Act, the whole process has
C.As @ SLP(C)No.9389/05 etc. (contd.) - 22 - been rendered redundant and has
become non est.
45. Shri
P.S. Patwalia, learned Senior Counsel appearing for some other appellants
submitted that he represents those land- owners, whose lands are situated in
village Chhatarpur but their petitions have been dismissed solely on the ground
of laches. According to him, they purchased the lands from original owners some
time in the month of April, 1985 but had filed the petitions in the High Court
in the year 2004.
46. It
has also been submitted by him that original owners, that is the vendors of
these appellants had already filed their objections under Section 5A of the Act
but the present appellants did not prosecute the same any further. Thus,
obviously, they came to be dismissed. He further informed that appellants still
continue to be in possession of the lands, and have already constructed houses
over the same, without any permission or sanction, since at that time no
permission/sanction was required to be obtained either from Panchayat or
Municipal Corporation.
47. As
regards laches, it has been tried to be explained by contending that First
Master Plan was published on 1.9.1962 but it lapsed in 1981. The second Master
Plan was in force upto 2001. On account of serious confusion due to variety of reasons,
the land-owners were in a lurch as to what legal C.As @ SLP(C)No.9389/05 etc.
(contd.) - 23 - steps are required to be taken due to the fact that Delhi
Administration itself had dropped further acquisition proceedings. He, therefore,
contended that when there was such a massive confusion, not only amongst the
litigating public but also amongst the advocates representing them, thus, they
were fully justified in not taking up the issue earlier and their petitions
could not have been dismissed solely on the ground of delay or laches when the
same were sufficiently explained to the Bench.
48. Mr.
T.R. Andhyarujina, learned senior counsel appeared for Springdales Educational
Society, whose land is also situated in village Chhatarpur. According to him,
appellant is the original owner of the land having purchased it in the year
1966-1967. On coming to know about the acquisition proceedings, appellant had
filed objections under Section 5A of the Act within 30 days and had
specifically sought an opportunity of hearing to it, which was not granted.
49. He
contended that appellant is imparting rural education to the residents of that
area and the purpose for which appellant's society has been set up is public
charitable purpose. Thus, when specific opportunity of hearing to support
objections filed by it under Section 5A of the Act was sought, further
declaration under Section 6 of the Act should C.As @ SLP(C)No.9389/05 etc.
(contd.) - 24 - not have been issued till the objections were finally decided.
He,
therefore, submitted that since notifications have been quashed in respect of
many villages, it is a fit case where notification as far as this appellant is
concerned, should also be quashed. He has also pressed into service the legal
maxim "actus curiae neminem gravabit," meaning thereby that an act of
the court shall prejudice none. He also reiterated that there was total
confusion with regard to the action required to be taken by the land-owners.
Thus, the petitions could not have been dismissed on the ground of laches, more
so, where equitable principles are invoked, laches would not come into play and
especially in such type of cases, where there was no occasion for the
respondents to file counter affidavit.
50.
Almost identical arguments have been advanced by Mr.Vikas, Mr. Y.P. Mahajan,
Mr. R.N. Keshwani, Mr. Bhargava V.Desai, Mr. Ravinder Singh, Mr. Amarjit Singh
Bedi, Mr. Vikas Mehta, Mr. M.R. Shamshed, Mr. N.S. Vasisth, appearing for the
other Appellants.
51. In
addition, they have also raised the ground that all the subsequent purchasers
have purchased the lands after fully complying with the provisions contained in
Section 5 of Delhi Land (Restrictions on Transfer) Act, 1972, which mandate
upon C.As @ SLP(C)No.9389/05 etc. (contd.) - 25 - the land-owners of Delhi to
seek permission from the competent authority that the said land is not under
orders of acquisition. They also contended that since permission was granted by
the competent authority for sale and transfer of their land, it would
automatically mean that the land was free from clutches of acquisition,
otherwise no permission in this regard would have been granted to them.
52.
Learned counsel appearing for respondents Shri Hiren Rawal, ASG, Ms.Indira
Jaising, ASG, Mr. D.N. Goburdhan and Ms.Gita Luthra opposed the prayer of the
appellants and contended that matters have now been settled by long catena of
cases either by High Court or by this Court, ever since the notifications were
issued in the year 1980. Thus, it is too late in the day for the appellants to
challenge the same on any other grounds.
53.
Learned ASG for respondent No.1, Union of India, Mr. H.S.Rawal has taken us
through the aims and objects of Amending Act No. 13 of 1967 and Amending Act
No. 68 of 1984, primarily to bring to our notice the purpose and reasons for
bringing various amendments in the original Land Acquisition Act 1894.
He
submitted that vide Amending Act No. 13 of 1967, amending provisions thereof
came into operation with effect from 12.4.1967.C.As @ SLP(C)No.9389/05 etc.
(contd.) - 26 –
54. It
has been submitted that the challenge by land owners to the issuance of
notifications under Section 4 of the Act stood concluded in favour of the
respondents by a Division Bench Judgment in the matter of Munni Lal (supra).
Argument was, therefore, advanced that the said judgment has already attained
finality as the aggrieved party had not challenged the same by filing any
further appeal in the Supreme Court.
Thus, it
should be deemed that the notifications issued under Section 4 of the Act by
respondents were legal, valid and beyond the pale of judicial review as the
lands are acquired for public purpose.
55. It
has been contended by him that generally the objections preferred under Section
5A of the Act were on a cyclostat format raising the same grounds against
acquisition, still, full and complete hearing on the said objections was
afforded to them by Land Acquisition Collector as contemplated under the Act.
56. He
has brought to our notice that in Munni Lal (supra), the Division Bench of
Delhi High Court had passed an interim order of stay on 18.3.1981, reproduced
herein below:- "Case for 27.4.1981 in the meanwhile, respondent Nos. 1 and
2 are restrained from issuing any declaration under Section 6 of the
Act."
C.As @
SLP(C)No.9389/05 etc. (contd.) - 27 -
57. In
the light of the aforesaid interim blanket order of stay passed by Delhi High
Court, learned counsel for respondents contended that the hands of the
respondents were tied by the said order and they could not have proceeded
further to issue any declaration under Section 6 of the Act.
The words
used in the interim order were "any declaration"
which
completely restrained them from proceeding further in this direction. It was
also contended that the aforesaid order came to be confirmed on 4.5.1981.
Similar interim orders thereafter came to be passed in various other writ
petitions preferred by land-owners. In the light of the various interim orders
passed by Delhi High Court from time to time, the respondents could not have
issued further declaration under Section 6 of the Act, otherwise they would
have exposed themselves for committing contempt of the Court.
58. It
was then contended that all objections preferred by land-owners under Section
5A of the Act were considered between the period from 8.5.1985 to 13.6.1985.
After hearing arguments on the objections, along with the report of the Land
Acquisition Collector, the same were forwarded to Lt. Governor of Delhi between
the period from 13.5.1985 to 22.6.1985. Lt. Governor then examined the
objections together with reports enclosed therewith prepared by Land
Acquisition Collector and C.As @ SLP(C)No.9389/05 etc. (contd.) - 28 - gave his
approval for acquisition of the land. In other words, it has been contended
that the provisions of the Act have fully been complied with and there has not
been any violation thereof.
59. He
has further brought to our notice that W.P.(C)No.2850 of 1985 was filed in the
High Court of Delhi challenging the same issue with regard to period of
limitation prescribed between issuance of notification under Section 4 and
further declaration under Section 6 of the Act, which came to be dismissed by
Division Bench on 25.11.1985. Pursuant to the said order, respondents had taken
possession of part of the land sought to be acquired vide order dated
14.7.1987.
60. It
has not been disputed before us that Mrs. Gita Sagar had written a letter on
31.3.1989 mentioning therein that on account of several developments and
judgment of the High Court of Delhi in B.R.Gupta-II the acquisition proceedings
are being dropped. It was followed by another circular issued by respondent on
07.12.1999 but it has been contended before us that they were not addressed to
any of the appellants or land owners whose lands were sought to be acquired and
by no stretch of imagination it could be said that all further proceedings of
acquisition of land were dropped. However, in our opinion, critical reading
thereof makes it abundantly C.As @ SLP(C)No.9389/05 etc. (contd.) - 29 - clear
the proceedings were dropped pursuant to the judgment in the case of the B.R.
Gupta-II. Consequently, the benefit of the said communication can be extended
qua the petitioners who had approached the High Court and not to all other land
owners.
61.
Coming to the question of delay and laches in filing the petitions by various
petitioners in the High Court, it has been contended that as a matter of fact,
cause of action for filing the petitions had accrued to them in the year 1985,
when on four different dates, declaration under Section 6 of the Act was
issued. Therefore, it was necessary on the part of the appellants to have
explained the delay from 1985 onwards.
He thus,
contended that it is to be explained in three stages viz:
(i) from
1985 till B.R. Gupta-II came to be decided on 18.11.1988;
(ii) from
the period from 18.11.1988 to 22.4.1997 when Abhey Ram (supra) came to be
decided and finally, (iii) post Abhey Ram's case, till the filing of the
petitions.
62. It
has been contended that unless the appellants are able to successfully
overcome the first hurdle from the year 1985 till 1988, the question of their
explaining delay and laches C.As @ SLP(C)No.9389/05 etc. (contd.) - 30 - for
the second or third stage would not arise.
63. Apart
from the above, it has also been strenuously contended before us that perusal
of each and every petition filed by the appellants would show that there has
been no concrete foundation in the pleadings explaining delay and laches. According
to respondents, it was incumbent on the part of the appellants to have
specifically pleaded as to why they could not approach the Court earlier and to
have explained the laches. Since this onus, which lay heavily on the appellants
was not discharged and their petitions having been dismissed on this ground,
the question of meeting the same by the respondents by way of their counter did
not arise.
64. It
was thereafter contended that in all the matters, awards have been passed
between the period from 19.5.1987 to 17.6.1987 pertaining to all the 13
villages and money had also been deposited. Once awards have been passed, in
the light of various judgments of this Court, it was neither justified nor
legally competent on the part of the appellants to have challenged the
declaration issued under the Act on the ground of limitation or on any other
ground. To buttress this ground, learned counsel for respondents have placed
reliance on the following judgments :
C.As @
SLP(C)No.9389/05 etc. (contd.) - 31 - 1) Vishwas Nagar Evacuees Plot Purchasers
Administration reported in (1990) 2 SCC 268;
(1996) 11
SCC 698; and Rajasthan (2008) 4 SCC 695.
65. It
was then submitted that as regards grant of permission was concerned, the same
has not been issued by the competent authority as prescribed under the Delhi
Land (Restrictions on Transfer) Act, 1972. Therefore, advantage thereof cannot
be taken by the appellants. To put forth further arguments in this regard,
reliance has been placed on a recent judgment of Governor of Delhi. It has been
brought to our notice that NOCs produced before this Court for perusal, would
show that the same have been issued under the seal and signature of Tehsildar
and not by the competent authority as defined under Delhi Land (Restrictions on
Transfer) Act, 1972. Therefore, no advantage thereof could be claimed by the
appellants, who are subsequent purchasers from original owners.
66. To
contend further in this regard, we have been taken through the affidavit of
Shri U.P. Singh, OSD (Litigation), C.As @ SLP(C)No.9389/05 etc. (contd.) - 32 -
Building Department of Government of NCT, Delhi, in which it has categorically
been mentioned with regard to the alleged NOC that the same is of no
consequence as it has not been issued by the competent authority as
contemplated under the said Act. It has been contended that the said NOC cannot
be construed as a valid permission to the subsequent purchasers in the light of
provisions of the Delhi Land (Restrictions on Transfer) Act, 1972.
67.
Additionally, it has been argued that in any case, the said NOC issued by
Tehsildar is of no consequence because Tehsildar was not the competent
authority at the relevant point of time. In the wake of this categorical denial
of valid NOC possessed by subsequent purchasers, it has been contended that
even grant of alleged NOC would not carry the appellants' case further to their
advantage.
68. It is
emphasised by him that in the light of judgment of this Court in Delhi
Administration v. Gurdip Singh Uban & Ors.
(2000) 7
SCC 296 known as Gurdip Singh Uban-II, all points having already been
considered, no fresh look is required by this Court. More so, when each and
every point argued, hammered and contended by the appellants has already been decided
against them. It was also submitted by him that in the name of unfair
treatment, matters which stood closed either by C.As @ SLP(C)No.9389/05 etc.
(contd.) - 33 - several judgments of this Court or of Delhi High Court and also
keeping in mind that land acquisition proceedings were initiated in the year
1980, nothing more is required to be done and the appeals deserve to be
dismissed.
69.
Learned ASG, Ms. Indira Jaising, appearing for Delhi Development Authority
argued on the similar lines, which have already been advanced by Mr. H.S Rawal.
In addition, she has contended that once notification under Section 4 of the
Act is issued, the same never dies or becomes ineffective unless it is
specifically revoked as required under the Act in accordance with law. To
substantiate this contention, learned Counsel has placed reliance on Section 21
of the General Clauses Act. She has also placed reliance on two judgments of
Council and Others reported in 1956 AC 376 and F. Hoffmann- LA and Industry
reported in 1975 AC 295, in this regard.
70. She
has further submitted that in view of three earlier judgments of this Court, it
has been held that Explanation 1 appended to first proviso to Section 6 would
apply squarely to the facts of the case therefore, it is neither legally permissible
nor warranted to take a different view.
C.As @
SLP(C)No.9389/05 etc. (contd.) - 34 -
71.
Coming to the question of legitimate expectation, it was contended that no
advantage of noting on the files or inter se circulars issued by Departments
can be taken by the parties. It was also submitted that the letter of Mrs.
Gita
Sagar as also the Circular issued thereafter would show that none was addressed
to any of the appellants and the same had died their own natural death, on
which appellants cannot build up their cases invoking the doctrine of
'Legitimate Expectation'. She has also submitted that as the cause of action
had actually accrued to the appellants in the year 1985 unless they are able to
successfully show to this Court and reasonably explain the delay caused in
filing the writ petitions in the High Court, the High Court was fully justified
in dismissing the same on the ground of delay and laches.
72. In
the light of the aforesaid contentions, several authorities have been cited by
her but in nutshell they are the same which have already been cited by the
learned counsel for other side. Nevertheless, we would deal with the same in
the latter part of the judgment
73. Ms.
Gita Luthra and Mr. D.N.Goburdhan, learned Counsel appearing for Govt. of NCT
of Delhi reiterated the same grounds which have already been argued and
advanced by Mr.
C.As @
SLP(C)No.9389/05 etc. (contd.) - 35 - Rawal and Ms. Indira Jaising.
Additionally, it has been contended that in some of the matters, objections
under Section 5A of the Act were not filed, yet they got the benefit, when 73
petitions came to be disposed of, in batch matters by Delhi High Court. It has
also been brought to our notice that at a much later stage, appellants had
sought permission to amend their petitions by raising a ground under Section 5A
of the Act but the Court was constrained to reject the same. Mr. D.N. Goburdhan
contended that delay in approaching the Court in filing a petition under
Articles 226-227 cannot be condoned unless the same is reasonably and satisfactorily
explained and that the Court must be fully satisfied with regard to the
plausible explanation of not being able to reach the Court earlier.
74. In
this regard, he has placed reliance on the judgment of this Court wherein it
has been held that even delay of 17 months could not be condoned and was not
found to be reasonable by this Court. With all these arguments having been
advanced by learned Counsel for respondents, their contentions have come to an
end.
75. In
the light of the aforesaid rival contentions advanced by the parties, we
proceed to decide the matter as C.As @ SLP(C)No.9389/05 etc. (contd.) - 36 -
under.
76.
Explanation 1 appended to first proviso of Section 6 of the Act, as reproduced
hereinabove, makes it crystal clear that where any order of stay has been
granted in favour of land owner, while computing the period of limitation of
three years for issuance of Section 6 notification, the actual period covered
by such order of stay should be excluded. In other words, the period of three
years would automatically get extended by that much of period during which stay
was in operation. The question which, therefore, arises for our consideration
is whether even in those cases where there has been no stay order granted or
passed in favour of the land owners, the period of limitation would be three
years from the date of issuance of notification under Section 4 of the Act or
it would be more on account of stay order granted in other matter in which such
appellants were not parties.
77. On account
of difference of opinion between two Benches of High Court of Delhi, matter was
referred to a Full Bench, referred to as B.R. Gupta-I, the only question posed
before it for opinion was with regard to effect of grant of stay, where
challenge is to the issuance of notification under Section 4 of the Act
vis-a-vis other land owners who had not challenged it. After considering the
ambit, scope and nature C.As @ SLP(C)No.9389/05 etc. (contd.) - 37 - of stay
granted especially in land acquisition matters, Full Bench has expressed its
opinion in paragraphs 26 to 31, reproduced hereinbelow :
"26.
Learned counsel for the petitioners is to some extent right in his contention
that broad as the above observations are, these cases are slightly different in
that they all dealt with the effect of the operation of stay order only
vis-a-vis one of the parties to the litigation in which the stay order is
passed. But we are of opinion that these decisions are of guidance as to the
proper approach to such a question. In the first place, they show that a stay
of execution of a decree can be pleaded as a ground for conclusion of the
period of stay even by a judgment-debtor who did not seek the stay.
To that
extent, the insistence by the petitioners that the exclusion can operate only
against the party who obtained the stay order would not be correct. Secondly,
these decisions show that the prohibition on action need not be the direct
effect of a stay order of a court. Thus, in the present cases, even if in terms
the court be held not to have stayed a declaration in other cases, such was the
indirect effect of the stay order in these cases. Thirdly, they lay down that
we should not interpret a provision of this type rigidly but should give it an
interpretation that gives effect to the object of the legislature.
27. We,
therefore, think that, in proceeding to interpret the scope of the explanation,
we should keep in mind the nature of the proceedings under the Land Acquisition
Act and the nature of the proceedings in which stay orders are obtained. So far
as the first of these aspects is concerned, while it is possible C.As @
SLP(C)No.9389/05 etc. (contd.) - 38 - for the Government to issue notifications
under S. 4 in respect of each plot of land sought to be acquired, it is not
feasible or practicable to do so, particularly in the context of the purpose of
many of the acquisitions at the present day. It is common knowledge that in
Delhi, as well as many other capital cities, vast extents are being acquired
for 'planned development' or public projects. The acquisition is generally part
of an integrated scheme or plan and, though, technically speaking, there can be
no objection to individual plots being processed under Ss. 5A, 6, 9, 12, etc.,
particularly after the amendment of 1967, the purpose of acquisition demands
that at least substantial blocks of land should be dealt with together at least
upto the stage of the declaration under S.6. To give an example, if a large
extent of land is to be acquired for the excavation of a canal, the scheme
itself cannot be put into operation unless the whole land can be eventually
made available. If even one of the land owners anywhere along the line applies
to court and gets a stay of the operation of the notification under S. 4, in
practical terms, the whole scheme of acquisition will fall through. It is of no
consolation to say that there was no stay regarding other lands covered by the
scheme.
To compel
the Government to proceed against the other lands (by refusing the benefit of
the explanation in such a case on the ground that there is no stay order in
respect thereof) would only result in waste of public expenditure and energy.
If, ultimately, the single owner succeeds in establishing a vitiating element
in the S.4 notification and in getting it quashed by the Supreme Court, the
whole proceeding of acquisition will fail and the government will have to
retrace the steps they may have taken in respect of other lands. (See:
C.As @
SLP(C)No.9389/05 etc. (contd.) - 39 - 1440). Assuming that where such final
order is by a High Court the position is not free from difficulty, the debate
as to whether, in law, the quashing of the order enures only to the benefit of
the party who filed the writ petition and obtained the order is futile, for the
moment the Government seeks to enforce the acquisition against the others, they
would come up with similar petitions which cannot but be allowed. In other
words, in many of the present day notifications, the acquisition scheme is an
integral one and the stay or quashing of any part thereof is a stay or quashing
of the whole. This aspect should not be lost sight of.
28. It is
true that the object of having contiguity of all plots sought to be acquired
may fail for various reasons. For instance, there may be items of properties
exempt from acquisition in between. Again, it may happen that a particular
person may have been able to stave off acquisition of his land for one reason
or other, particularly since dates of declarations under S.6, awards and taking
of possession may vary from plot to plot.
Moreover,
it is not in all cases that the object of acquisition needs a number of
contiguous plots and may be workable even without some of the intervening
lands.
However,
in considering a question of interpretation, one should not go only by one
particular situation but must consider all eventualities to the extent
possible. It is only on a broad perspective of the scheme of present day
acquisitions in large measure that we say that any hurdle in regard to any one
plot of land can hold up an entire acquisition, all promptness and expedition
on the part of the Government notwithstanding.
29. It
was sought to be urged that the interpretation sought to be placed by the
respondent would result in equating an interim order with a final judgment and
the C.As @ SLP(C)No.9389/05 etc. (contd.) - 40 - final judgment in a land
acquisition case to a judgment in rem and in this context reference was made to
S.41, Evidence Act, and to a passage in Woodroffe on Evidence (14th Edition,
Vol.2) at page 1225. We do not think this analogy is correct. If the final
order can operate to the benefit of all the parties, there is no reason why the
interim order cannot also affect them. Moreover, we are considering the nature
and effect of an injunction passed by the court against one of the parties
thereto who has to act in the same capacity not only in the acquisition of the
plot of land the owner of which has obtained a stay order but in all
proceedings consequent on or in pursuance of the same notification that is
challenged in that petition.
30.
Secondly, the nature of proceedings in which stay orders are obtained are also
very different from the old pattern of suits confined to parties in their scope
and effect. Section 4 notifications are challenged in writ petitions and it is
now settled law that in this type of proceeding, the principle of locus standi
stands considerably diluted. Any public spirited person can challenge the
validity of proceedings of acquisition on general grounds and when he does this
the litigation is not inter parties simpliciter: it is a public interest
litigation which affects wider interests. The grounds of challenge to the
notification may be nothing personal to the particular landholder but are, more
often than not, grounds common to all or substantial blocks of the land owners.
In fact, this group of petitions now listed before us raise practically the
same contentions just as the previous batch of writ petitions challenging the
notifications under S. 4 raised certain common contentions.
To accept
the contention that the challenges and interim orders in such petitions should
be confined to the particular petitioners and C.As @ SLP(C)No.9389/05 etc.
(contd.) - 41 - their lands would virtually provide persons with common
interests with a second innings.
If the
initial challenge succeeds, all of them benefit; and if for some reason that
fails and the second challenge succeeds on a ground like the one presently
raised, the first batch of petitioners also get indirectly benefited because of
the impossibility of partial implementation of the scheme for which the
acquisition is intended.
31. We
have, therefore, to give full effect to the language of the section and the
stay orders in question, in the above context and background. The use of the
word "any" in the explanation considerably amplifies its scope and
shows clearly that the explanation can be invoked in any case if some action or
proceeding is stayed. It may be complete stay of the operation of the entire
notification or may even be a partial stay - partial in degree or in regard to
persons or lands in respect of whom it will operate.
The words
used in the explanation are of the widest amplitude and there is no
justification whatever to confine its terms and operation only to the cases in
which the stay order is actually obtained."
78. In
the light of the aforesaid opinion having been expressed by Full Bench, the
original Writ Petition of the Petitioner-Balak Ram was placed before a Division
Bench for its disposal in accordance with law.
79.
Division Bench of the High Court on 14.8.1988, pronounced only the operative
part of the judgment, to the effect that further acquisition proceedings in
all the said writ petitions stood quashed, reasons were to follow. The C.As @
SLP(C)No.9389/05 etc. (contd.) - 42 - reasons in respect of the aforesaid
operative part of the order were supplied in a judgment referred to as B.R.
Gupta- II.
80. The
Division Bench while allowing the petitions recorded the concession made by the
Senior Advocate Mr. R.K. Anand, to the effect that he was unable to support the
declaration in view of the lack of opportunity of hearing granted by Land
Acquisition Collector under Section 5A of the Act to the land owners. The
concession so given is recorded in para 7 of the judgment. The Court also
examined the matter independent of the concession and quashed the entire
notification on many grounds. Thus, all the 73 Writ Petitions filed by land
owners came to be allowed and the acquisition proceedings were dropped.
81.
Against the order passed in writ petitions by Delhi High Court in B.R.
Gupta-II, the matter travelled to this Court in Abhey Ram (supra).
82. This
Court after considering previous judgments on the controversy involved in the
matter held as under in paras 10, 11 and 12 reproduced herein below :
"10.
The question then arises is whether the quashing of the declaration by the
Division Bench in respect of the other matters would enure the benefit to the
appellants also.
Though,
prima facie, the argument of the C.As @ SLP(C)No.9389/05 etc. (contd.) - 43 -
learned counsel is attractive, on deeper consideration, it is difficult to give
acceptance, to the contention of Mr. Sachar.
When the
Division Bench expressly limited the controversy to the quashing of the
declaration qua the writ petitioners before the Bench, necessary consequences
would be that the declaration published under Section 6 should stand upheld.
11. It is
seen that before the Division Bench judgment was rendered, the petition of the
appellants stood dismissed and the appellants had filed the special leave
petition in this court. If it were a case entirely relating to section 6
declaration as has been quashed by the High court, necessarily that would enure
the benefit to others also, though they did not file any petition, except to
those whose lands were taken possession of and were vested in the State under
Sections 16 and 17 (2) of the Act free from all encumbrances. But it is seen
that the Division Bench confined the controversy to the quashing of the
declaration under Section 6 in respect of the persons qua the writ petitioners
before the Division Bench. Therefore, the benefit of the quashing of the
declaration under Section 6 by the division Bench does not ensure to the
appellants.
12. It is
true that a Bench of this Court has considered the effect of such a quashing in
Delhi Development Authority v. Sudan Singh (1997) 5 SCC 430. But,
unfortunately, in that case the operative part of the judgment referred to
earlier has not been brought to the notice of this Court.
Therefore,
the ratio therein has no application to the facts in this case. It is also true
that in Yusufbhai Noormohmed 531,this Court had also observed that it would
ensure the benefit to those petitioners.
C.As @
SLP(C)No.9389/05 etc. (contd.) - 44 - In view of the fact that the notification
under Section 4 (1) is a composite one and equally the declaration under
Section 6 is also a composite one, unless the declaration under Section 6 is
quashed in toto, it does not operate as if the entire declaration requires to
be quashed. It is seen that the appellants had not filed any objections to the
notice issued under Section 5A."
83. In
fact, after the pronouncement of the judgment in Abhey Ram (supra) rendered by
three learned Judges of this Court, nothing survives in these Appeals, but
looking to the vehement arguments advanced by learned senior counsel Mr. P.P.
Rao, we have once again examined the whole controversy in the light of his
arguments.
84. Even
though judicial propriety and discipline create legal hurdles and impediments,
in coming to a different conclusion than what has already been arrived at by
three learned Judges of this Court in Abhey Ram (supra), but looking to the
arguments advanced, we proceed to decide it.
85. It
has been submitted before us by Mr. P.P. Rao that admittedly, appellants
represented by him, had not preferred any objections under Section 5A of the
Act, thus, in any case, they could not have been precluded from challenging the
declaration issued under Section 6 of the Act being barred by limitation.
According to him, two issues being entirely different and separate they could
not have been clubbed C.As @ SLP(C)No.9389/05 etc. (contd.) - 45 - together so
as to non-suit the appellants.
86. Even
though the arguments advanced by learned counsel for the appellants appear to
be attractive, but, on deeper scanning of the same we are of the opinion that
on account of omission of the appellants, they cannot be granted dividend for
their own defaults. The appellants should have been more careful, cautious and
vigilant to get the matters listed along with those 73 petitions, which were
ultimately allowed by the High Court. Not having done so, the appellants have
obviously to suffer the consequence of issuance of notifications under Section
4 and further declaration under Section 6 of the Act.
87.
Perusal of the opinion of Full Bench in B.R. Gupta-I would clearly indicate
with regard to interpretation of the word 'any' in Explanation 1 to the first
proviso to Section 6 of the Act which expands the scope of stay order granted
in one case of land owners to be automatically extended to all those land
owners, whose lands are covered under the notifications issued under Section 4
of the Act, irrespective of the fact whether there was any separate order of
stay or not as regards their lands. The logic assigned by Full Bench, the
relevant portions whereof have been reproduced hereinabove, appear to be
reasonable, apt, legal and proper.
C.As @
SLP(C)No.9389/05 etc. (contd.) - 46 -
88. It is
also worth mentioning that each of the notifications issued under Section 4 of
the Act was composite in nature. The interim order of stay granted in one of
the matters, i.e., Munni Lal (supra) and confirmed subsequently have been
reproduced hereinabove. We have also been given to understand that similar
orders of stay were passed in many other petitions. Thus, in the teeth of such
interim orders of stay, as reproduced hereinabove, we are of the opinion that
during the period of stay respondents could not have proceeded further to issue
declaration/notification under Section 6 of the Act. As soon as the interim
stay came to be vacated by virtue of the main order having been passed in the
writ petition, respondents, taking advantage of the period of stay during which
they were restrained from issuance of declaration under Section 6 of the Act,
proceeded further and issued notification under Section 6 of the Act.
89. Thus,
in other words, the interim order of stay granted in one of the matters of the
land owners would put complete restraint on the respondents to have proceeded
further to issue notification under Section 6 of the Act. Had they issued the
said notification during the period when the stay was operative, then
obviously they may have been hauled up for committing contempt of court. The
language employed in the C.As @ SLP(C)No.9389/05 etc. (contd.) - 47 - interim
orders of stay is also such that it had completely restrained the respondents
from proceeding further in the matter by issuing declaration/notification under
Section 6 of the Act.
90. No
doubt, it is true that language of Section 6 of the Act implies that
declarations can be issued piecemeal and it is not necessary to issue one
single declaration for whole of the area which is covered under notification
issued under Section 4 of the Act. Parliament was aware of such type of
situation and that is why such a right has been carved out in favour of
respondent-State. In many cases, urgency clause may be invoked, therefore, the
right of filing objections under Section 5A of the Act would not arise. In some
cases, even though objections might be preferred under Section 5A of the Act,
but, may not be pressed in spite of knowledge of acquisition of land. Some of
the land owners may not prefer to file any objections at all. In order to meet
such type of exigencies as may arise in the case, power has been given by the
Parliament to the Executive to issue declarations in piecemeal under Section 6
of the Act, wherever it may be feasible to implement the scheme.
91. The
facts of the aforesaid cases would show that in the case in hand as many as
four declarations under Section 6 of C.As @ SLP(C)No.9389/05 etc. (contd.) - 48
- the Act were issued from time to time. Finally when declaration is quashed by
any Court, it would only enure to the benefit of those who had approached the
Court. It would certainly not extend the benefit to those who had not
approached the Court or who might have gone into slumber.
92. To
us, this appears to be the scheme of the Act and that was the intention of the
Parliament. That being so, scheme of the Act as has been legislated, has to be
given full effect to.
93. We
find no ground to grant the same reliefs to those appellants to whom on earlier
occasions, same relief was granted. At this long distance of time, it would
neither be proper nor legally justified to grant that benefit to the
appellants. If it is granted to even those who had not approached the court,
then it would frustrate the very purpose and scope of the Act. In the light of
the aforesaid, we are of the considered opinion that final quashment of the
declaration under Section 6 of the Act by any Court, in some other matter,
cannot be extended to the benefit of the present appellants. In any case, there
is no ground for us, to rise to the occasion to do so, much less to the
benefits of the appellants. In our considered opinion, it is not a fit case
where situation or circumstances call upon us to rise to the C.As @
SLP(C)No.9389/05 etc. (contd.) - 49 - occasion and to grant such inequitable
reliefs to the appellants, after such a long delay.
94.
Obviously, the appellants cannot be rewarded on account of their own lapse as
they should have been vigilant enough to get their matters also listed along
with those in whose favour ultimately judgment was pronounced.
95.
Looking to the scheme of the Act, it is obvious that the appellants would
certainly suffer the consequence of the interim order passed in some other
matters preferred by other land owners challenging the notifications but
finally benefit thereof cannot be accrued to the appellants as the same would
obviously be confined to those petitioners only in whose favour orders were
passed.
96. The
arguments advanced by Mr. P.N. Lekhi appear to be attractive at the first
instance, but, after going through closer and deeper scrutiny of the first
proviso appended to Section 6 of the Act, we are of the considered opinion that
certain period has been saved. First proviso clearly indicates that all actions
which have taken place between the period, after commencement of Land
Acquisition (Amendment &n Validation) Ordinance 1967 but before the
commencement of Land Acquisition (Amendment) Act 1984, would be saved. There
is no dispute in these matters that notifications under Section 4 of C.As @
SLP(C)No.9389/05 etc. (contd.) - 50 - the Act were issued on 05.11.1980 and
25.11.1980, the period which is covered by the first proviso to Section 6 of
the Act.
Thus,
this ground sought to be advanced by Mr. Lekhi as well as Mr. Mukul Rohtagi,
cannot be accepted and is decided against them.
97. In
fact, this aspect of the matter has been dealt with elaborately in the opinion
expressed by Full Bench in the case of B.R. Gupta-I. The proviso, according to
Full Bench opinion, is very elaborate and made Explanation 1 applicable to the
computation of any of the periods referred to in first proviso. In the said
judgment, four situations have been carved out. Situation No.(ii) would cover
the present case which deals with notification issued under Section 4 after
28.1.1967 but before 25.9.1981. Relevant portion of paragraph 11 thereof is
reproduced hereunder :
"If
the object of the legislature had been to confer the benefit of the explanation
only to situations (iii) and (iv), it could have enacted the proviso as
indicated earlier and added an explanation that, in computing the period of
limitation, periods covered by stay orders would be excluded.
The
legislature need not have at all referred to situation (ii) above. But the
Legislature also wanted to make it clear that the explanation would apply in
respect of notifications under S.4 issued prior to 25-9-1981 as well. In doing
so, the provision could well have taken into account even S.4 notifications
issued prior to 29-1- C.As @ SLP(C)No.9389/05 etc. (contd.) - 51 - 1967 for it
was quite conceivable that, though the two year period for following these up
with declaration under S.6 had elapsed by 28-1-1969, the failure to make a S.6
declaration may have been the consequence of a stay order from a court.
But the
Legislature decided to exclude this category from the provision for extension
in the explanation, and decided to confine itself to all notifications under
S.4 made after 29-1-1967. This is very important and the manner in which cl.(a)
of the proviso is worded so as to cover all notifications after 29-1-1967 and
before 24-9-1984 precludes the contention urged on behalf of the petitioners
seeking to limit the operation of the explanation. This contention is that the
amendments of 1984 can at best only affect cases in which the three year period
prescribed in 1967 had not expired by 24-9-1984. In other words, the argument
is that only cases covered by notifications under S.4 issued after 25-9- 1981
can be affected by the amendments and have the benefit of the extended period
contemplated in the explanation. This contention is clearly unacceptable. It
runs counter to the entire scheme of the proviso (which specifically takes in
all the period after 29-1-1967) and the explanation (which is specifically made
applicable to both the clauses of the proviso). We are, therefore, of opinion
that the language and intendment of the provision are clear and unambiguous and
that the period of exclusion mentioned in the explanation should be taken into
account in the cases of all notifications issued after 29-1-1967 whether or not
the period otherwise limited under the proviso for a follow-up declaration
under S.6 in respect thereof had expired or not. We, therefore, reject the
contention urged on behalf of the petitioners."
C.As @
SLP(C)No.9389/05 etc. (contd.) - 52 -
98. Thus,
considering the matter in the light of the opinion expressed by Full Bench as
also with the plain reading of the first proviso and explanation (i) the
following opinion can be safely deduced and the aforesaid conclusion would be
inescapable that the exclusion envisaged is available in respect of
notifications issued between the period commencing from 29.1.1967 and
24.9.1984.
99. As
mentioned hereinabove, in Chatro Devi-I both the learned Judges dismissed the
writ petition in respect of the cases where Land Acquisition Collector was the
same who had heard the arguments then prepared the report and also in respect
of those who had not preferred any objections under Section 5A of the Act. The
decision of Division Bench of Delhi High Court in B.R. Gupta-II (supra) was
held to be incorrect and acquisition proceedings were upheld in respect of
aforesaid cases. However, difference of opinion was confined only with regard
to import and interpretation of Section 5A of the Act as to what would
constitute 'hearing'.
100.
Primarily, Hon'ble Mr. Justice Swatanter Kumar (as he then was) was of the
opinion that even if matters have been heard by 'A' and decided by 'B', it
would amount to sufficient compliance of Section 5A of the Act but Hon'ble Mr.
Justice Madan B. Lokur was of the view that if a matter C.As @ SLP(C)No.9389/05
etc. (contd.) - 53 - is heard by 'A' obviously it has to be decided by him only
and if it has been decided by 'B' then the same would amount to miscarriage of
justice and obviously would lead to violation of principles of natural justice.
101. Only
to this limited extent, with regard to interpretation of Section 5A of the Act,
matter was referred to third learned Judge Hon'ble Mr. Justice T.S. Thakur, (as
he then was). In his separate judgment, Hon'ble Mr.Justice Thakur concurred
with the view expressed by Hon'ble Mr. & Ors. reported in 137 (2007) DLT 14
known as Chatro Devi-II.
102. We
have been given to understand that, feeling aggrieved by the majority opinion
as expressed by two learned Judges in the matter of Chatro Devi II, the Union
of India had filed 39 Special Leave Petitions in this Court wherein leave has
been granted and appeals are now pending disposal in accordance with law.
103. At
the first instance, we thought of getting those matters also listed before us
for hearing so that once for all, the dispute pertaining to the notifications
issued in the year 1980 would come to an end, but we have been informed that
many of the respondents have not yet been served and some matters cannot be
listed on account of technical defaults. We C.As @ SLP(C)No.9389/05 etc.
(contd.) - 54 - also requested learned counsel appearing for appellants to
appear for those respondents but they showed their inability in doing so as the
respondents of those appeals are not the same, who are appellants before us.
104.
Thus, in this judgment, we are not considering the ambit, scope and
interpretation of Section 5A of the Act and have specifically left it open, to
be decided in the said 39 appeals.
105. It
has not been disputed before us that after the opinion was expressed by Full
Bench in B.R. Gupta-I all the connected 73 writ petitions came to be heard by
Division Bench in B.R.Gupta-II. All the said petitions were allowed and the
reliefs as claimed by them were granted vide order dated 18.11.1988.
The
question whether stay granted to some of the land owners prohibiting the
authorities from publication of declaration under Section 6 of the Act would be
applicable to others also, who had not obtained stay in that behalf came to be
considered by a three-Judge Bench of this Court in the case of Abhey Ram
(supra). In paragraph (9) thereof it has been held as under:- "9. .....
The words 'stay of the action or proceeding' have been widely interpreted by
this Court and mean that any type of the orders passed by this Court would be
an inhibitive action on the part of the authorities to proceed further. When
the action of conducting an enquiry under C.As @ SLP(C) No.9389/05 etc.
(contd.) - 55 - Section 5A was put in issue and the declaration under Section 6
was questioned, necessarily unless the Court holds that enquiry under Section
5A was properly conducted and the declaration published under Section 6 was
valid, it would not be open to the officers to proceed further into the matter.
As a consequence, the stay granted in respect of some would be applicable to
others also who had not obtained stay in that behalf. We are not concerned with
the correctness of the earlier direction with regard to Section 5A enquiry and
consideration of objections as it was not challenged by the respondent Union.
...."
Further
in the same judgment, in paragraph 12 it has been held as under :
"12.
... ... ... In view of the fact that the notification under Section 4(1) is a
composite one and equally the declaration under Section 6 is also a composite
one, unless the declaration under Section 6 is quashed in toto, it does not
operate as if the entire declaration requires to be quashed. It is seen that
the appellants had not filed any objections to the notice issued under Section
5A."
106. To
satisfy ourselves with regard to the aforesaid arguments advanced by learned
counsel for the appellants, we have gone through the record and find that Land
Acquisition Collector had heard the objections and thereafter had forwarded
the same to Lt. Governor for his opinion. The dates from which the objections
were heard have already been given hereinabove. Similarly, the manner in which the
same were C.As @ SLP(C)No.9389/05 etc. (contd.) - 56 - dealt with by Lt.
Governor has also been scrutinized. We do not find any infirmity or illegality
in the procedure adopted in the same. We are of the considered opinion that
there has been full, complete and strict compliance of the provisions contained
in the Act by the respondents.
107. In
the light of the aforesaid discussion, it is not necessary for us to consider
the judgment of this Court in the case of Oxford English School (supra). This
was a judgment by two learned Judges of this Court whereas the judgment in the
case of Abhey Ram (supra) is by three learned Judges of this Court. Secondly,
the question as to whether an order of stay passed in one case would be
applicable to other similarly situated persons who had not been granted stay
was not directly in issue in Oxford School Case (supra) decided by this Court.
The question in the said case was primarily with regard to the period of
limitation of three years within which a declaration under Section 6 is
required to be made.
108. In
the light of the foregoing discussion, more so, keeping in mind the ratio of
which stood concluded by a judgment of Bench of three learned Judges of this
Court in the case of Abhey Ram (supra), we are of the opinion that it is not a
fit case where we are called upon to come to a C.As @ SLP(C)No.9389/05 etc.
(contd.) - 57 - different conclusion that subsequent declaration issued under
Section 6 was beyond the period of limitation. Fact situation does not warrant us
to do so.
109.
Impugned orders passed by High Court from time to time would reveal that some
have been dismissed primarily on the ground of delay and laches. We have gone
through the said orders critically and find that if the appellants were under
some bonafide mistake and had not challenged the issuance of notifications or
declaration under Section 6 of the Act within a reasonable time then on the
ground that there was an eclipse period during which they were not supposed to
take any legal action, would be of no help to them. For that they have to thank
their own stars. Some of the petitions have been filed either in the year 2000
or subsequent thereto.
Thus, the
High Court was justified in not entertaining such petitions on the ground of
delay and laches. Even though, they have tried to attempt to explain the delay
but such a long delay cannot be condoned more so, when proceeding of
acquisition was initiated in the year 1980.
110. It
may be recalled that notifications were issued in the year 1980. Almost 30
years have already passed by, but, no steps could be taken to formally complete
the scheme so far.
Thus,
after such a long lapse of time, it will not only be C.As @ SLP(C)No.9389/05
etc. (contd.) - 58 - harsh but inequitable also to quash the notifications so
as to grant liberty to the appellants to challenge same in accordance with law.
111. The
contention that in the cases of Abhey Ram and Gurdip Singh Uban, admittedly, no
objections were preferred under Section 5A of the Act, therefore, the
appellants' cases stood on a higher pedestal than those which were considered
in the aforesaid two cases also has no merits. It was also submitted that the
so called satisfaction of Lt. Governor was not legally tenable as admittedly no
records were sent to him by the Land Acquisition Collector after deciding the
objections filed by the appellants along with his report. We have already
mentioned above that there has been application of mind by the Lt. Governor to
the facts of the case.
112. As
has been mentioned above and held by this Court in Abhey Ram (supra) that
notification under Section 4(1) of the Act being composite one it would not be
proper and legally justifiable to quash the same more so when most of the
appellants had not filed any objections under Section 5A of the Act. Thus, the
declarations issued under Section 6 of the Act cannot be quashed.
113. The
clear ratio of the aforesaid passage of this Court is that unless the
declarations issued by respondents on as C.As @ SLP(C)No.9389/05 etc. (contd.)
- 59 - many as four dates, as mentioned hereinabove, in the year 1985, are
quashed in toto, it cannot be said that respondents could not have proceeded
further with regard to acquisition of those lands for which the same has not
been quashed earlier.
114. In
other words, it has been held that for all remaining lands for which neither
the notifications under Section 4 nor declarations under Section 6 have been
quashed, acquisition proceedings, notification/declaration issued for remaining
lands would continue to hold good and respondents can proceed further.
115. In
the light of foregoing discussion, we are of the opinion that appeals have no
merit and substance. The same are hereby dismissed with costs. Counsel's fees
Rs. 10,000/- in each case.
.......................J.[V.S. SIRPURKAR]
.......................J. [DEEPAK VERMA]
February 08, 2010.
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