DELHI ADMINISTRATION & ANR. Vs. KIDARNATH MOHINDERNATH & ANR.
Section 4 - Publication of preliminary notification and power of officers thereupon
Section 6 - Declaration that land is required for a public purpose
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1888 of 2008, Judgment Date: Mar 30, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1888 OF 2008
DELHI ADMINISTRATION & ANR. APPELLANTS
VERSUS
KIDARNATH MOHINDERNATH & ANR. RESPONDENTS
J U D G M E N T
1. The respondents questioned the land acquisition proceedings
initiated by virtue of issuance of Notification under Section 4 of the Land
Acquisition Act, 1894 (hereinafter referred to as 'the Act') and also
declaration issued on 07.06.1985 under Section 6 of the Act.
2. M/s. Kidarnath Mohindernath filed Writ Petition (C) No.2019/1986
in the High Court with respect to land bearing Khasra Nos.1619, 1620,
1615/2 and 1616/2 situated in revenue estate of village Chhatarpur, Tehsil
Mehrauli, Delhi. It was averred by the petitioner in the said writ petition
that he had purchased the land and that the predecessor-in-interest of the
petitioner had submitted a building plan to the Municipal Corporation of
Delhi for the construction of a farm house on the aforesaid agricultural
land vide file No.34/A/HQ/74 dated 30.03.1974 which was sanctioned by the
Municipal Corporation of Delhi (hereinafter referred to as 'MCD') on
16.07.1974.
1.
3. The Delhi Administration issued a Notification under
Section 4 of the Act which carved out certain exceptions with respect to
the following lands :
A) Government lands;
B) Land earlier notified either under Section 4 or under Section 6 of
the Act;
C) Land in respect of which lay out plans/building plans were
sanctioned by MCD before 05.11.1980.
4. Thus, Respondent No.1 herein claimed that the land was exempted
from the acquisition as per the Notification issued under Section 4 and
ought not to have been included in declaration under Section 6 of the Act.
Since, the land of the petitioner had been exempted; it was not necessary
to file objections under Section 5-A of the Act, as such petitioner did not
file any objection. However, land had been illegally included in the
declaration issued under Section 6 of the Act for the purpose of 'Planned
development of Delhi'.
5. It was also averred that it was necessary to issue Notification
under Section 4, which was not issued with respect to the petitioner's
land, as such declaration under Section 6 could not have been issued. The
declaration issued under Section 6 was beyond the time, as prescribed in
proviso contained under Section 6(1) of the Act.
6. The Writ Petition was not resisted by Delhi Administration by
filing a reply for the reasons best known to Delhi Administration, neither
reply was filed to the writ application before the High Court nor the
decisions rendered
2.
by this Court in same acquisition were cited.
7. The High Court had opined that since exceptions were carved out in
the Notification issued under Section 4 of the Act, as such declaration
issued under Section 6 of the Act did not include the land of the
petitioner and it had allowed the Writ Petition without quashing the
declaration issued under Section 6 of the Act, though, land had been
included in declaration issued under Section 6 of the Act. Aggrieved
thereby, the Delhi Administration and Land Acquisition Collector had
preferred the appeal.
8. Learned counsel appearing on behalf of the appellants urged that
it was incumbent upon the Respondent No.1 to file objections under Section
5-A of the Act to claim exemption of the land from acquisition on the basis
of sanction of building plan granted in the year 1974, otherwise the entire
area of the village was covered in Notification issued under Section 4 for
the purpose of acquisition. Since no such exclusion/exemption was claimed
on the basis of the sanction of building plan of 1974, the same is deemed
to have been waived. Thus, the inquiry held under Section 5-A, on the basis
of which appropriate government directed the acquisition of the land, as
indicated in the Report could not be faulted. Declaration issued under
Section 6 could not be said to have suffered with any illegality.
9. It was further urged by learned counsel appearing on behalf of the
appellants that question of delay of three years has been considered by
this Court in same acquisition
3.
and was rejected in Om Parkash versus Union of India and others (2010) 4
SCC 17, and other reasoning employed by the High Court has been squarely
dealt with by this Court in its decision in Delhi Administration versus
Gurdip Singh Uban and Others (2000) 7 SCC 296, which also arose out of the
same acquisition process.
10. Learned counsel appearing on behalf of the Respondent No.1 has
strenuously submitted that since land had been exempted in the Notification
under Section 4, Respondent No.1 remained under the impression that there
was no requirement to file any objection seeking exemption under Section 5-
A of the Act. It was further submitted by him that since Notification under
Section 4 excluded the land by making out exemption, it could not be
included in declaration under Section 6. There was no notification under
Section 4 with respect to land of the respondent(s). Thus, the declaration
under Section 6 was illegal. He has further submitted that since Respondent
No.1 succeeded in the High Court only on the one ground, the other ground
is required to be pressed with respect to belated issuance of declaration
under Section 6 of the Act. He has contended that it was barred by time as
per proviso under Section 6(1) of the Act.
11. After hearing learned counsel for the parties, we are of the
considered opinion that notification issued under Section 4 of the Act was
with respect to the large chunk of area, comprised in several villages,
approximately 50,000 bighas was proposed to be acquired. Though, it
is true
4.
that notification issued under Section 4 of the Act intended to exempt the
land, with respect to which building plans, had been sanctioned before
05.11.1980. The notification under Section 4 was with respect to the entire
area in villages, it was necessary to claim exemption and there was no
other mechanism available with respect to the ascertainment of the sanction
of the building plan before 05.11.1980, with respect to the particular
piece of land, it was to be claimed by filing objections under Section 5
'A' of the Act.
12. In the instant case, inquiry under Section 5-A had been held and
the lands in question were proposed to be acquired and certain other lands
were to be excluded as per notification. The Report under Section 5-A had
been accepted by appropriate Government and thereafter declaration under
Section 6 had been issued. According to the report under Section 5-A, the
land of Respondent No.1 came to be included in the acquisition by virtue of
the final declaration issued under Section 6.
13. Admittedly, Respondent No.1 did not file any objection under
Section 5-A to seek exemption from acquisition on the basis of the
aforesaid sanction. It was incumbent upon Respondent No.1 to have claimed
such an exemption from acquisition, otherwise the land of the entire
village was notified under Section 4 for the purpose of acquisition. Having
failed to do so, it is apparent that he has waived his rights on the basis
of so called sanction as
5.
it was not made the basis for claiming exemption and in the
circumstances when the claim had not been raised for exemption of land,
inquiry under Section 5-A cannot be termed as illegal and consequently
declaration under Section 6. Otherwise several complications and piquant
situations may arise if it is held that it was not necessary to participate
in inquiry to claim exemption then it would not be possible to give
finality to declaration under Section 6 and it would have to be quashed
time and again on such claims for exemptions not set forth at the stage of
inquiry under Section 5-A of the Act.
14. The only purpose of the inquiry is to ascertain which land is to
be excluded from acquisition. In such circumstances, when the land was so
to be excluded from acquisition on the basis of exceptions mentioned in the
Notification under Section 4, it had to be claimed. It would not follow
automatically, such exceptions as reflected in Notification under Section 4
find place in other schemes also. However, such exemptions have to be
claimed either on the basis of scheme or on the basis of notification in
the course of inquiry. Having failed to do so, the final declaration under
Section 6 of the Act which had been issued could not be termed illegal.
Similar view has been taken by this Court in Delhi Administration versus
Gurdip Singh Uban and Others (Supra), considering the same notification and
also the factual matrix that no objection was taken for
6.
exemption in the course of inquiry under Section 5-A. This Court has laid
down as under :
“30. The crucial question therefore is whether in a situation where each of
the seventy odd writ petitioners of 1985 covered specific areas and the
brief order dated 14-10-1988 allowed the writ petitions, the said order
could be treated as one affecting the entire notification under Section 6
and even cases where objections were not filed under Section 5-A as in the
case before us. Question also arises whether the final order dated 18-11-
1988 containing reasons as reported in B.R. Gupta v. Union of India could
have covered the entire area in the 12 villages, about 50,000 bighas even
with regard to the other claimants whose writ petitions were not before the
Division Bench and even other cases where no objections were filed in
Section 5-A inquiry?
53. Now objections under Section 5-A, if filed, can relate to the
contention that (i) the purpose for which land is being acquired is not a
public purpose, (ii) that even if the purpose is a public purpose, the land
of the objector is not necessary, in the sense that the public purpose
could be served by other land already proposed or some other land to which
the objector may refer, or (iii) that in any event, even if this land is
necessary for the public purpose, the special fact-situation in which the
objector is palced, it is a fit case for omitting his land from the
acquisition. Objection (ii) is personal to the land and Objection (iii) is
personal to the objector.
54. Now in the (ii) and (iii) types of objections, there is a personal
element which has to be pleaded in Section 5-A inquiry and if objections
have not been filed, the notification must be conclusive proof that the
said person had “waived” all objections which were personal and which he
could have raised. However, so far as Objection (i) is concerned, even in
case objections are not filed, the affected party can challenge in Court
that the purpose was not a public purpose.
55. Learned Solicitor General Shri Salve rightly argued that in respect of
each landowner whose land is acquired, the Section 4 notification if it is
sought to be avoided on personal grounds as
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stated in (ii) and (iii) above, it is necessary
that objection be filed to avoid a voidable notification. Otherwise, the
notification which is not avoided on any personal grounds, remains
operative and personal objections are deemed to be waived.
56. In the extracts from the Division Bench judgment set out earlier, it
will be seen that two different concepts are unfortunately mixed up.
Satisfaction regarding public purpose, it was said must be expressed in
respect of each “particular land”. This view, as already stated, is not
correct. If the entire land is needed for a public purpose, it is not
necessary for the Government (or here the Ld. Governor) to say in the
Section 6 declaration that each piece of land is required for the public
purpose. The Division Bench then mixed up this question with individual
objections in each writ petition. Obviously, these individual objections of
types (ii) and (iii) mentioned above can only be personal to each writ
petitioner or peculiar in respect of each of the pieces of land owned. In
that event, the rejection of the objections by the Land Acquisition Officer
and the “satisfaction” of the Government/Lt. Governor can relate only to
each of these pieces of land and not the whole. Therefore, there is no
question of the Division Bench holding in its order dated 18-11-1988 that
the satisfaction of the Ld. Governor in respect of the entire land is
vitiated. As already stated, the satisfaction regarding public purpose was
never in issue.
57. It was then argued that satisfaction under Section 6 for the rest of
the land not covered by the 73 writ petitioners or even where no objections
are filed under Section 5-A, must be held vitiated because the objections
filed in certain other cases were not properly considered by the officer
and hence Section 6 satisfaction of the Ld. Governor for the rest of the
land is also vitiated.
58. We are unable to agree that in the cases not before the Division Bench
and in particular in cases where no objections are filed, the satisfaction
under Section 6 is vitiated because in some other cases, the objections
which were filed were not properly disposed of. As to rejection of personal
grounds of each writ petitioner, - other than the 73 writ petitions –
8.
there was no occasion for the Lt. Governor to apply his mind if objections
were not indeed filed. The only question then could have been about the
public purpose.
59. In the present cases there is no dispute that the purpose is a public
purpose. The applicant had not filed objections on grounds personally
applicable to him or to this land seeking exclusion from acquisition, and
the objections in that behalf must be deemed to have been waived. Such a
person cannot be allowed to file a writ petition seeking the quashing of
Section 5-A inquiry and Section 6 declaration on personal grounds if he had
not filed objections. Points 4 and 5 are decided accordingly against the
applicants.”
(Emphasis supplied)
15. In view of the aforesaid decision, it is clear that the decision
of the High Court is not correct and impugned order passed by the High
Court can not be sustained. Though, aforesaid binding decision was
available but it was not placed before the High Court.
16. Coming to the next submission raised by learned counsel for
Respondent No.1 with respect to the declaration under Section 6 whether it
was issued after requisite period prescribed under proviso of Section 6 (1)
of the Act. Section 6 (1) of the Act makes it clear that 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(1), is stayed by an order of a Court shall be
excluded and this aspect has been taken into consideration in respect to
the same notification by this Court in the case of Om Parkash (supra) in
which it has been laid down :
9.
“71. 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 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 the 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, the 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.
72. Thus, in other words, the interim order of stay granted in one of the
matters of the landowners 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 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.”
17. Thus submission is liable to be rejected. Apart from that we find
that this objection had not been pressed rightly, in view of the aforesaid
decision, before the High Court. We are of the opinion that no case for
interference is made out on this ground also.
10.
18. It was submitted by the learned counsel for Respondent No.1 that
in one such other case, Delhi Administration has accepted a judgment of
Delhi High Court thus could not have questioned the order passed by the
High Court in the case of the Respondent No.1 only. We are not inclined to
accept the submission raised by the learned counsel for Respondent No.1,
firstly, for the reason that there is no concept of negative equality,
secondly, apart from that, this Court has already decided the matter in the
decisions mentioned above which were binding and not brought into the
notice of the High Court. Thus, illegal order cannot be permitted to
survive.
19. The appeal is allowed. Impugned judgment and order passed by the
High Court is set aside. Writ Petition is dismissed. Parties are directed
to bear their own costs.
...........................J.
(ARUN MISHRA)
..........................J.
(S. ABDUL NAZEER)
NEW DELHI,
MARCH 30, 2017
11.