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                                            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.

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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

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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.

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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.

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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

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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

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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                         7.

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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.

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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.

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“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.

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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

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