STATE OF HARYANA & ANR. Vs. DEVANDER SAGAR & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 318 of 2011, Judgment Date: Sep 07, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 318 OF 2011
STATE OF HARYANA & ANR. .…..APPELLANTS
Versus
DEVANDER SAGAR & ORS. …..RESPONDENTS
WITH
C.A. Nos. 459-462 of 2011
HARYANA URBAN DEVELOPMENT
AUTHOIRTY& ORS. .…..APPELLANTS
Versus
P.K. DHAWAN & ORS. …..RESPONDENTS
J U D G M E N T
VIKRAMAJIT SEN, J.
CIVIL APPEAL No. 318 OF 2011
1 This Appeal questions the correctness of the Judgment dated 12.3.2008
delivered by the Division Bench of the High Court of Punjab and Haryana in
C.W.P. No. 1123 of 2006, on the basis of which the High Court had also
allowed C.W.P. No. 1465 of 2006, C.W.P. No. 2166 of 2007, C.W.P. No. 7066
of 2008 and C.W.P. No. 7353 of 2008. Civil Appeal No. 318 of 2011 and
Civil Appeal Nos. 459-462 of 2011 respectively assail these Judgments. It
merits to mention that the connected Civil Appeal No. 535 of 2011 was, on
the unrefuted submission made by the learned counsel for the
Respondents/Landowners in that Appeal, dismissed as infructuous by an Order
dated 11.3.2015 of this Court; the submission was that the Public Notice
dated 8.4.2010 had released the subject land from acquisition.
2 The State of Haryana had issued a Notification under Section 4 of the
Land Acquisition Act, 1984 (‘L.A. Act’ for brevity) on 18.1.2001 to acquire
12.18 acres of land falling in Village Khera Markanda and 11.64 acres of
land falling in Village Ratgal as mentioned in the Schedule thereto for the
construction of a fell-storm sewer, a sewage-treatment plant and a
crematorium (Shamshan Ghat) at Kurukshetra. Simultaneous with the issuance
of this Notification, the Appellant State had also invoked the urgency
provisions contained in Sections 17(1) and 17(4), thereby denying to the
landowners (some of whom are the Respondents before us) the opportunity to
file Objections under Section 5A of the L.A. Act. A Declaration under
Section 6 of the L.A. Act was issued the very next day, i.e. 19.1.2001. It
was at this juncture that the Respondents/Landowners filed C.W.P. No. 2503
of 2002 and C.W.P. No. 8696 of 2002, (along with a third party namely
Neelam Ram, the petitioner in C.W.P. No. 4887 of 2002) challenging the
Section 4 Notification dated 18.1.2001 and the Section 6 Declaration dated
19.1.2001.
3 It will be pertinent to point out that by the time interim orders
came to be passed in the Writ Petitions by the Division Bench on 7.2.2002,
the one year period prescribed in the statute to advance from Notification
to Declaration stage had already elapsed. It is also relevant to record
that notwithstanding the interim order dated 7.2.2002, the Appellant State
passed an Award on the next day, namely 8.2.2002, obviously oblivious of
those interim orders. It also took possession of certain parts of the
Scheduled lands. The one year prescription having been transgressed, the
subject acquisition would have met its statutory death but for the feature
that the urgency provisions had been invoked by the State in the event
without legal propriety. The time table established under the L.A. Act
requires to be recalled. Upon the publication of a Notification, affected
landowners are required to file Objections within thirty days. Although no
period has been prescribed for disposal of Objections by the Collector,
this exercise must reach its culmination within one year of the
Notification’s issuance. If these actions are so done, the Government must
direct the Collector to “take order for the acquisition of the land” which
is a statutory provision which smacks superficiality. The Collector must
also mark and measure the land in question, cause public notice to be given
of the Government’s intention to take possession of the land and invite
claims for compensation etc. After deciding any objection or
representation received from the interested parties, an Award has to be
made within two years of the Declaration, failing which the entire
acquisition proceedings would lapse. Of course the period covered by stay
orders granted by a Court would be excluded. Parliament was, as is
manifestly evident, alive to the injury that would inexorably visit the
landowners if acquisition proceedings were not circumscribed by time, as
compensation is pegged to the date of the Notification. The entire
exercise has to be completed within three years. This time prescription is
thus obviously intended to ensure that the landowners whose lands have been
expropriated on the State’s continuing powers of eminent domain receive the
market price for their property in close proximity of the time of
acquisition. These persons would thus be in a position to purchase
alternate property, which indubitably would not be possible if the
compensation award is implemented after delay. Courts must be ever
vigilant and resolute in protecting these persons from unfair treatment by
the State. Thankfully, Parliament has, in terms of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013, provided amelioration against Governmental apathy.
4 By a brief Order delivered on 12.1.2004, that is in the era of Padma
Sundara Rao vs. State of Tamil Nadu (2002) 3 SCC 533, the Division Bench of
the Punjab and Haryana High Court, noting the contentions that the
Appellant State had not adhered to the mandatory requirement of payment of
80 per cent compensation to the landowners and that it did not qualify as a
case of urgency since the Appellant State passed had failed to publish an
Award within one year after the Section 6 Declaration, quashed the latter.
However, for reasons recondite, the Division Bench simultaneously permitted
the petitioners before it to file Section 5A Objections within thirty days
and permitted the Appellant State to issue a fresh Section 6 Declaration in
the event that it found no substance in those Objections. The directions
could not have been given by the Division Bench. Instead, the Division
Bench should have simply quashed the Section 6 Declaration, at which point
the Section 4 Notification would have lapsed, due to the fact that the one
year period for filing a Declaration had already elapsed. In Greater Noida
Industrial Development Authority vs. Devendra Kumar (2011) 12 SCC 375 it
has been clarified that it is impermissible for the Government to proceed
with the acquisition from the stage of Section 4. Applying the ratio of
Kiran Singh vs. Chaman Paswan (1955) 1 SCR 117 which has been followed in
Dr. Jogmittar Sain Bhagat vs. Dir. Health Services, Haryana (2013) 10 SCC
136 to the effect that a decree without jurisdiction is a nullity and its
invalidity could be a subject at any stage in any proceedings and even at
the stage of execution, the said Order of the Division Bench can be
ignored. We think it appropriate to reproduce the operative part of this
Order for reasons that will become apparent later:-
“In the facts and circumstances of the case, as mentioned above, in our
view, interest of justice would be served, if we quash declaration under
Section 6 of the Act dated 19.1.2001, and all subsequent proceedings that
might have been taken thereafter with liberty to the petitioners to file
objections under Section 5-A of the Act within 30 days from the date of
receipt of a certified copy of the order, which, naturally shall be heard
by the State or the authority constituted by the State for that purpose, in
accordance with law and after giving an appropriate hearing to the
petitioners if the objections are rejected, naturally, the Government will
be in its power to issue declaration under Section 6 of the Act.
Petition is disposed of accordingly. However, parties are left to
bear their own costs.” (emphasis supplied)
5 We must highlight the lapses by the Appellant State in the manner in
which it conducted the acquisition. Significantly, no compensation
whatsoever, leave alone the 80 per cent postulated by the Statute under
Section 17(3), was given at the time that the urgency provisions were
invoked. This exercise ought to have been carried out by passing a
provisional or ad hoc Award containing the Collector’s estimation of the
compensation to be paid to the landowners. The State seems to be oblivious
of the law and impervious to the plight of the landowners whose livelihood
is virtually deracinated. Section 6 requires particular perusal and we
are extracting its relevant portions for convenience. Also, for facility
of reference, Sections 17(3A) is reproduced in order to emphasize that
those provisions could be correctly and properly resorted to only if the
State Government, through its Collector, had tendered 80 per cent of the
compensation estimated by him.
Section 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, it any, made under
section 5A, sub-section (2), that any particular land is needed for a
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 authorized 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 (1),_
xxx xxx xxx
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:
17. Special powers in cases of urgency —
xxx xxx xxx
(3A) Before taking possession of any land under sub-section (1) or
sub-section (2), the Collector shall, without prejudice to the provisions
of sub-section (3), —
tender payment of eighty per centum of the compensation for such land as
estimated by him to the persons interested entitled thereto, and
pay it to them, unless prevented by some one or more of the contingencies
mentioned in section 31, sub-section (2),
and where the Collector is so prevented, the provisions of section 31, sub-
section (2) (except the second provision thereto), shall apply as they
apply to the payment of compensation under that section.
6 Even though the holding of property is no longer a fundamental right
guaranteed under Part III of the Constitution of India, it has been given
constitutional protection under Article 300A which came to be inserted into
the Constitution by the Constitution (Forty-fourth Amendment) Act, 1978
which omitted Article 19(1)(f), viz., “to acquire, hold and dispose of
property”. The Constitution now guarantees that no person shall be
deprived of his property save by authority of law. We have mentioned this
for the reason that if the Union or the State Government is desirous of
depriving any person of his property it can only do so by authority of law.
That authority, as is facially evident, inter alia, is the necessity to
tend the payment of 80 per cent of the compensation estimated by the
Collector in the event that Section 17 is to be pressed into service, with
the objective of denying the landowners remonstration rights by filing
Objections in consonance with Section 5A of the L.A. Act. Expropriatory
legislation, such as the L.A. Act, must compulsorily be construed strictly.
The Appellant State cannot be permitted to invoke one part of Section 17
while discarding another. Sections 17(3A) and 17(3B), which were
inserted by the Act 68 of 1964 with effect from 24.9.1994, cannot be
rendered nugatory. In this regard, we are reminded of the Judgment of this
Court in Babu Verghese v. Bar Council of Kerala (1999) 3 SCC 422 which held
that: “It is the basic principle of law long settled that if the manner of
doing a particular act is prescribed under any statute, the act must be
done in that manner or not at all.” The origin of this rule is traceable
to the decision in Taylor v. Taylor (1875) 1 Ch D 426 which was followed by
Lord Roche in Nazir Ahmad v. King Emperor AIR 1936 PC 253, and has been
upheld in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1954 SC
322, State of U.P. v. Singhara Singh AIR 1964 SC 358 and Hussein Ghadially
v. State of Gujarat (2014) 8 SCC 425.
7 Prima facie, time for filing of 5A Objections would have to be
computed to have commenced on the date of the Order, i.e. 12.1.2004, and
further there seems to be no alternative but to deem the issuance of the
Section 4 Notification for the same date. Hence the Section 6 Declaration
would have to be made at the latest by 11.1.2005. However, we reiterate
that the High Court ought to have simply quashed the Section 4 Declaration
in personam, or if circumstances so commanded, in rem. By permitting nay
enjoining the petitioners to file Objections, the High Court has caused a
piquant position to come into place. But, as is trite, no party can be
made to suffer any disadvantage due to an act of the Court. The
Respondents filed Objections on 11.2.2004 which were dismissed in September
2004 paving the way for the passing of a fresh Section 6 Declaration on
30.12.2004. The Respondents thereupon challenged the Section 4
Notification dated 18.1.2002 and the Section 6 Declaration dated 30.12.2004
in terms of C.W.P. No. 1123 of 2006, C.W.P. No. 1465 of 2006 and C.W.P. No.
2166 of 2007.
8 In the second salvo of writ petitions, the Division Bench has found
in the impugned Judgment dated 12.3.2008 that the second Section 6
Declaration had been made after the passing of the period prescribed in the
L.A. Act, as the Section 4 Notification was issued on 18.1.2001. It noted
that this Court had held in Padma Sundara Rao that the subject statutory
period has to be imparted a strict construction; the period could be
increased only in the circumstances postulated and provided for in the Act
itself. The Division Bench also observed that even if the second Section
6 Declaration were to be accepted as valid by construing the one year
period from the date of the Order of the previous Division Bench dated
12.1.2004, the Appellant State had failed to pass an Award within two
years, thus falling foul of Section 11A of the L.A. Act. The Section 4
Notification, the Section 6 Declaration and all proceedings pursuant
thereto were therefore quashed. We find it apposite to note the error in
the latter observation. According to Section 11A of the L.A. Act, the award
has to be made within two years of the date of the Declaration, which
requirement was met in this case. There was no basis on which to calculate
this period from the date of the previous Order, as the Division Bench has
done.
9 It would be pertinent to clarify that the quashing of the entire
acquisition proceeding has to be explicitly expressed. This Court has in
Shyam Nandan Prasad v. State of Bihar (1993) 4 SCC 255, Abhey Ram, Delhi
Administration v. Gurdip Singh Uban (1999) 7 SCC 44, Delhi Administration
v. Gurdip Singh Uban (2000) 7 SCC 296 and The Chairman and M.D., TNHB v. S.
Saraswathy (Judgment delivered on 11.5.2015 in Civil Appeal Nos. 736-737 of
2008) reiterated and restated the established and consistent view that
quashing of acquisition proceedings at the instance of one or two
landowners does not have the effect of nullifying the entire acquisition.
In A.P. Industrial Infrastructure Corporation Limited v. Chinthamaneni
Narasimha Rao (2012) 12 SCC 797, this Court has reiterated the established
proposition that landowners who are aggrieved by the acquisition
proceedings would have to lay a challenge to them at least before an Award
is pronounced and possession of the land is taken over by the Government.
Numerous decisions of this Court have been discussed obviating the need to
analyze all of them once again. However, generally speaking, Courts come
to the succour of those who approach it. In some instances equities are
equalized by allowing subsequent slothful petitioners, belatedly and
conveniently jumping on the bandwagons, to receive, at the highest,
compensation granted to others sans interest.
10 The Appellant State has filed this Appeal contending that the parties
are bound by the Division Bench Order dated 12.1.2004, which allowed for
filing of a fresh Section 6 Declaration. This is a specious submission
because the State ought to have assailed that Order since its conclusions
were contrary to the ratio of the Constitution Bench of this Court in Padma
Sundara Rao. It may be contended that the landowners could equally have
challenged this Order. However, given the resources available virtually
at the beck and call of the State, it cannot be excused for its neglect or
jural folly and must be held responsible for its failures. This is
especially so since the concerned citizens face the draconian consequences
of expropriation of their land with its attendant loss of income. The
Appellant State further contended that the initial Section 6 Declaration
was within the statutory time period and upon the curing of technical
defects, the original Section 6 Declaration continued. The Appellant
State also argued that the possession of certain lands has already been
taken by the Haryana Urban Development Authority (HUDA) and therefore those
matters have acquired finality in accordance with the ratio of Padma
Sundara Rao, which is available in these extracted paragraphs:
11. It may be pointed out that the stipulation regarding the urgency in
terms of Section 5-A of the Act has no role to play when the period of
limitation under Section 6 is reckoned. The purpose for providing the
period of limitation seems to be the avoidance of inconvenience to a person
whose land is sought to be acquired. Compensation gets pegged from the date
of notification under Section 4(1). Section 11 provides that the valuation
of the land has to be done on the date of publication of notification under
Section 4(1). Section 23 deals with matters to be considered in determining
the compensation. It provides that the market value of the land is to be
fixed with reference to the date of publication of the notification under
Section 4(1) of the Act. The prescription of time-limit in that background
is, therefore, peremptory in nature. In Ram Chand v. Union of India (1994)
1 SCC 44 it was held by this Court that though no period was prescribed,
action within a reasonable time was warranted. The said case related to a
dispute which arose before prescription of specific periods. After the
quashing of declaration, the same became non est and was effaced. It is
fairly conceded by learned counsel for the respondents that there is no bar
on issuing a fresh declaration after following the due procedure. It is,
however, contended that in case a fresh notification is to be issued, the
market value has to be determined on the basis of the fresh notification
under Section 4(1) of the Act and it may be a costly affair for the State.
Even if it is so, the interest of the person whose land is sought to be
acquired, cannot be lost sight of. He is to be compensated for acquisition
of his land. If the acquisition sought to be made is done in an illogical,
illegal or irregular manner, he cannot be made to suffer on that count.
******
14. While interpreting a provision the court only interprets the law and
cannot legislate it. If a provision of law is misused and subjected to the
abuse of process of law, it is for the legislature to amend, modify or
repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v.
P.N.B. Capital Services Ltd.) The legislative casus omissus cannot be
supplied by judicial interpretative process. Language of Section 6(1) is
plain and unambiguous. There is no scope for reading something into it, as
was done in Narsimhaiah case. In Nanjudaiah case the period was further
stretched to have the time period run from date of service of the High
Court’s order. Such a view cannot be reconciled with the language of
Section 6(1). If the view is accepted it would mean that a case can be
covered by not only clause (i) and/or clause (ii) of the proviso to Section
6(1), but also by a non-prescribed period. Same can never be the
legislative intent.
.* * * * *
16. The plea relating to applicability of the stare decisis principles is
clearly unacceptable. The decision in K. Chinnathambi Gounder v. Government
of Tamil Nadu AIR 1980 Mad 251 : (1980) 2 MLJ 269 (FB)was rendered on 22-6-
1979 i.e. much prior to the amendment by the 1984 Act. If the legislature
intended to give a new lease of life in those cases where the declaration
under Section 6 is quashed, there is no reason why it could not have done
so by specifically providing for it. The fact that the legislature
specifically provided for periods covered by orders of stay or injunction
clearly shows that no other period was intended to be excluded and that
there is no scope for providing any other period of limitation. The maxim
actus curiae neminem gravabit highlighted by the Full Bench of the Madras
High Court has no application to the fact situation of this case.
11 The Division Bench has predicated its decision to set aside the
Notification as well as the Declaration on Padma Sundara Rao, which
ironically the previous Division Bench had failed to follow. The decision
of the Constitutional Bench in Padma Sundara Rao held that the language in
Section 6(1) is clear and unambiguous, and the time period cannot be
stretched as this would not be in keeping with the legislative intent. The
contention of the Appellant State that the Declaration dated 30.12.2004 is
a continuation of the initial Declaration is thus clearly erroneous, as
such a finding would be in the face of the strict interpretation of time
prescribed by Padma Sundara Rao and the unambiguous language of Section 6.
Had the Legislature intended to allow for such a continuation, it would
have done so by specifically providing for it, as it has done for periods
covered by orders of stay and injunction. Furthermore, the Appellant State
cannot place reliance on an erroneous Order which caused grave prejudice to
the rights of the Respondents. It would be apt to mention the legal
principle that no party should suffer for the mistake of the Court. Since
compensation is calculated based on the value of the land on the date of
the Section 4 Notification, the Order of the Division Bench dated 12.1.2004
resulted in the landowners getting compensation at 2001 rates even though
the Award was finally passed in 2006 and the compensation is yet to be paid
to the Respondents. Had the Division Bench Order struck down only the
Declaration, which in turn would have resulted in the entire acquisition
lapsing, the Appellant State would have had to reinitiate acquisition
proceedings, resulting in the Respondents receiving compensation at the
market rates current at the time of the fresh Notification. We therefore
find that the Declaration dated 30.12.2004 cannot be upheld merely by
virtue of the previous Division Bench’s erroneous and prejudicial Order.
We are in agreement with the decision of the High Court in the impugned
Judgment and consequently dismiss the Appeal.
C.A. Nos. 459-460 of 2011
12 We are of the opinion that the substance of the issues in question in
this batch of petitions are analogous to those in Civil Writ Petition No.
1123 of 2006 which has been assailed in Civil Appeal No. 318 of 2011, save
for the difference that it is the Haryana Urban Development Authority which
has filed the Appeal. In that light, the findings made in the preceding
Appeal apply squarely to this batch of Appeals as well, and are decided in
the same terms.
C.A. Nos. 461-462 of 2011
13 The factual scenario in these Appeals is different from Civil Appeal
No. 318 of 2011, in that compensation has been paid to the Contesting
Respondents, whose land is now in the possession of Haryana Urban
Development Authority. Section 24 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
makes it clear that the three requirements for an acquisition to attain
finality are the passing of an award, payment of compensation and taking of
possession, all of which are met here. Furthermore, the Contesting
Respondents in these Appeals had not been parties before the Division
Bench in its Judgment dated 12.3.2008. As that Judgment did not explicitly
state that it would apply to all the landowners affected by the impugned
acquisition process, it was limited in scope to the parties before it, for
reasons that we have already discussed herein. It would also be pertinent
to note that the Contesting Respondents in these Appeals only filed writ
petitions challenging the acquisition after the Judgment dated 12.3.2008
was passed. We find that till the date of the 12.3.2008 Judgment, these
Respondents had acquiesced to the acquisition and had allowed it to become
final, and therefore they could not seek to challenge it by placing
reliance on a Judgment that did not enure to their benefit.
14 A number of Proforma Respondents were impleaded in Civil Appeal No.
462 vide order dated 12.4.2013, and we are not aware of whether the
acquisitions with regard to their land has become final. However, these
Proforma Respondents first challenged the acquisition by filing a writ
petition in 2010, well after the Judgment dated 12.3.2008. It is thus
clear that these Respondents, too, initially consented to the acquisition
process and only challenged it belatedly by seeking to rely upon a
favourable Judgment that did not relate or pertain to them. The impugned
Orders dated 12.5.2008 in C.W.P. No 7066 of 2008 and 13.5.2008 in C.W.P.
No. 7353 of 2008 as well as Order dated 19.1.2010 in C.W.P. No. 163 of
2010 are therefore set aside, and these Appeals are accordingly allowed.
..................................................J.
[VIKRAMAJIT SEN]
....................................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 7, 2015.
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