‘REPORTABLE’

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3636 OF 2016

UNION OF INDIA & ORS.                          Appellant(s)

VERSUS

GOPALDAS BHAGWAN DAS & ORS.               Respondent(s)

J U D G M E N T

R. F. Nariman J.

This matter has a somewhat chequered history.   

In 1943, Government of India requisitioned 4 acres and

34 gunthas of the land owned by one Rajabahadur Bhagwandas

Haridas, bearing Survey No. 120/2 (Part) of Village Malad,

Mumbai, in exercise of powers conferred under Rule 75A of

the  Defence  of  India  Rules,  1939.   On  27.07.1949,  the

Collector, Thane, de-requisitioned 2.68 acres in the Survey

No. 120 Part 2 out of the aforesaid 4 acres 34 gunthas.

Ultimately,  despite  the  land  having  first  being

requisitioned, a notification under Section 4(1) of the Land

Acquisition Act, 1894 (hereinafter referred to as ‘Act’),

was issued on 24.10.1975 acquiring the aforesaid extent of

8623 square meters.  A declaration under Section 6 of the

Act was issued on 30.11.1978.  According to the respondents

herein, a Draft Award was passed under Section 11 of the Act

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on  23.09.1986,  against  which  references  were  made,  both

under  Section  18  and  30,  of  the  Act.   The  respondents

confirmed  that  after  symbolic  possession  was  taken  on

06.01.1987 by the State, such possession has remained with

the State till date.

In a proceeding that was filed, insofar as other lands

in Village Malad were concerned, covered by the same section

4 notification, this Court in Kulsum R. Nadiadwala v. State

of Maharashtra and Ors. (2012) 6 SCC 348, allowed an appeal

by the land owner.  After stating in paragraph 2 that the

very same section 4 notification was issued in order that a

Central Ordinance Depot for the Union of India be made for

defence purposes, the judgment records that the beneficiary

of these lands, being the Central Government, was served,

but did not appear at the time of hearing of the appeal.

The appellant in Kulsum R. Nadiadwala’s case (supra) argued

several points before this Court, which were resisted by the

learned  counsel  appearing  for  the  State  of  Maharashtra,

basically on the ground that the writ petition should have

been dismissed on the ground of delay and laches as was done

by  the  impugned  High  Court  judgment.   After  setting  out

Section  4  of  the  Act,  this  Court  observed  that  the

requirement  that  the  notification  under  Section  4  be

published in the Official Gazettee and the requirement that

the Acquiring Authority should publish public notices of the

substances of  such notification  in a  convenient place  or

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places in the locality in which the land proposed to be

acquired is situate, are cumulative conditions, both being

mandatory.  The Court then held: -

“13. In the instant case, the respondents before the High Court had filed their reply affidavit. They did not dispute the contentions of the appellants that they had not issued any public notices as required under Section 4 of the Act. They only reiterated that such  notification  was  published  in  the  Official Gazette. Since the mandatory requirement as required under Section 4(1) of the Act is not complied with by the  respondents,  while  acquiring  the  lands  in question,  in  our  opinion,  the  entire  acquisition proceedings requires to be declared as null and void.

14. This Court in J&K Housing Board v. Kunwar Sanjay Krishan Kaul has observed that all the formalities of serving notice to the interested person, stipulated under Section 4 of the Act, has to be mandatorily complied with in the manner provided therein, even though the interested persons have knowledge of the acquisition proceedings. This Court further observed thus:

“32. It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done  in accordance  with the  manner prescribed therefor in the Act. Merely because the parties concerned  were  aware  of  the  acquisition proceedings  or  served  with  individual  notices does  not  make  the  position  alter  when  the statute  makes  it  very  clear  that  all  the procedures/modes  have  to  be  strictly  complied with  in  the  manner  provided  therein.  Merely because  the landowners  failed to  submit their objections within 15 days after the publication of notification under Section 4(1) of the State Act,  the  authorities  cannot  be  permitted  to claim that it need not be strictly resorted to.”

15. In view of the conclusion that we have reached on the first issue canvassed by the learned counsel for the appellants, we do not think that other issues that  the  learned  counsel  for  the  appellants  has raised and canvassed before us need to be answered.”  

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It  may  only  be  mentioned  that  in  Kulsum  R.

Nadiadwala’s case (supra), the challenge was made by way of

a writ petition filed in 1987, as opposed to the present

challenge, which was made only in the year 2002.   

Ms. Rekha Pandey, learned counsel appearing on behalf

of the appellant, has raised several points in support of

this appeal.  First and foremost, she adverted to an order

of this Court dated 27.03.2018 by which a Division Bench of

this Court has referred this matter to a larger Bench of

three Judges.  This order reads as follows:  

“1. The land of the respondents was acquired vide notification dated 24.10.1975 under Section 4 of the Land Acquisition Act, 1894 (the Act). The said land was earlier requisitioned in the years 1942 to 1945 for defence purpose. Award was made in the year 1986 and  symbolic  possession  of  the  land  was  taken  on 06.01.1987. Objections of the award were filed by the respondents  against  the  award.  A  reference  under Section 18 of the Act was made which was disposed of. Thereafter,  the  writ  petition  was  filed  by  the respondents mainly on the ground that there was no due publication of the notification under Section 4 of the Act which was a mandatory requirement.  

2.The High Court upheld the plea of the respondents relying upon judgment of this Court in “Kulsum R. Nadiadwala  Vs.  State  of  Maharashtra”  (2012)  6  SCC 348.  

3.Learned counsel for the appellants submitted that having regard to the fact that the land was already being used for defence purpose since the year 1942 to 1945 and the notification under Section 4 issued on 24.10.1975 was challenged for the first time by the writ  petition  filed  on  24.06.2002,  the  High  Court should have dismissed the writ petition on the ground of  delay  and  laches  as  entertaining  such  petition will  seriously  affect  public  interest.  It  was submitted that view taken in the relied upon judgment ignores the concept of laches.  

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4.Learned counsel for the respondents submits that in spite  of  delay  and  laches,  this  Court  in  the aforesaid judgment quashed the acquisition.

5.We are of the view that delay and laches may be a bar to challenge to the acquisition after 27 years. In  Tamil  Nadu  Housing  Board,  Chennaiversus  M. Meiyappan and ors (2010) 14 SCC 309 this Court held that inland acquisition proceedings the Court should not  encourage  stale  litigation  as  it  may  hinder projects  of  public  importance.  The  contra  view  in threeJudge Bench decision in Dayal Singh versus Union of India (2003) 2SCC 593 was held to be in conflict with the Constitution Bench judgment in Rabindranath Bose versus Union of India (1970) 1 SCC 84 and three- Judge Bench judgment in Printers (Mysore) Ltd. versus M.A. Rasheed(2004) 4 SCC 460. The said judgment was cited with approval in recent judgment of threeJudge Bench  in  Indore  Development  authority  versus Shailendra (Dead) through Lrs. & Ors. (Civil Appeal No.20982 of 2017 –pronounced on 8th February, 2018).

6.In view of above, the view taken by twoJudge Bench in  Kulsum  R.Nadiadwala  versus  State  of Maharashtra(2012) 6 SCC 348 to the effect that delay and laches have to be ignored is not free from doubt.

7.Thus, we are of the view that the matter needs to be placed before a Bench of three Judges.  

8.Accordingly,  let  the  papers  be  placed  before Hon’ble the Chief Justice of India for appropriate directions.”

Ms. Pandey, learned counsel, has argued before us that

as a matter of law, such a huge delay in filing a writ

petition against Section 4 notification cannot possibly be

countenanced.   She  has  also  argued  that  in  Kulsum  R.

Nadiadwala’s  case  (supra),  really  speaking,  the  delay  is

only of one year, as the Award in this case was issued only

in the year 1986, and the writ petition filed in that case

was of 1987.  In the present case, the writ petition, as has

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been  stated  earlier,  was  filed  only  in  2002.   Another

important  point  of  difference,  according  to  the  learned

counsel  is  that  notice  was  personally  served  on  the

respondents in this case, which is not the case in Kulsum R.

Nadiadwala’s case (supra).  She also raised the point that

was raised in the special leave petition filed by the Union

of India which is that  Kulsum R. Nadiadwala’s case (supra)

is “per incuriam” inasmuch as it decided a point which arose

out  of  the  Amendment  Act  of  1984,  when  the  Section  4

notification was only of 1975, the 1984 Amendment Act not

being retrospective.  She further went on to state that, in

any case, the Constitution Bench is taking up, as one of the

pleas before it in  Indore Development Authority v.  Manohar

Lal and Others Etc. (SLP (C)Nos. 9036-9038 of 2016) whether

delay would apply as a good ground for dismissing a writ

petition on the ground of laches insofar as challenges to

land  acquisition  proceedings  are  concerned,  and  that  we

should await the judgment of the Constitution Bench before

proceeding with the judgment in this case.  She kept harping

upon  the  fact  that  the  acquisition  in  this  case  is  for

important defence purposes and possession of this land has

been with the Union Government since 1942.  She also stated

that Kulsum R. Nadiadwala’s judgment, if properly read, did

not amount to quashing of the entire section 4 notification,

particularly in view of the last paragraph of the judgment,

where the claim of the appellant was restricted only to 50

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per cent of the land in question, the direction being that

the respondents shall hand over 50 per cent of the vacant

possession of the said land to the appellant forthwith.

As  against  these  submissions,  Shri  Shyam  Divan,

learned  senior  counsel  appearing  on  behalf  of  the

respondents, argued that that the section 4 notification in

both these cases being the same, and Kulsum R. Nadiadwala’s

case  being a final judgment of this Court in which a review

petition and a curative petition have been dismissed, the

said judgment would apply on all fours to the facts of this

case.  He pointed out that the question of delay, though

raised by the learned counsel who appeared on behalf of the

State, was not directly answered in  Kulsum R. Nadiadwala’s

case  inasmuch as, according to the Division Bench of this

Court in Kulsum R. Nadiadwala’s case, a mandatory condition

of  a  section  4  notification  not  being  adhered  to,  would

amount to there being no acquisition at all in the eye of

law.   On  this  ground,  he  defended  the  impugned  judgment

passed by the Bombay High Court.   

Though this Court has, by its order dated 27.03.2018,

referred this case to a larger Bench in view of the decision

in Kulsum R. Nadiadwala’s case that delay and laches have to

be ignored, we are of the view that on the facts of this

case, we need not answer this question.  This is for the

reason that the section 4 notification that was struck down

in  Kulsum R. Nadiadwala’s case is the very notification in

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the facts of this case.  We may also note that in paragraph

13 of the  Kulsum R. Nadiadwala’s case set out hereinabove,

this  Court  quashed  the  entire  acquisition  proceedings

stating that they be declared as null and void.  We are

unable to agree with Ms.Pandey’s contention that the Section

4 notification not only deals with various other lands in

Village Malad but also deals with a land in a different

village  altogether  viz.,  Village  Wadhawan,  and  that  this

Court’s judgment did not go to the extent of declaring the

acquisition bad so far as village Wadhawan is concerned. So

far as village Malad is concerned, where the land in Kulsum

R. Nadiadwala’s  case was land that was adjacent to the

present  land,  the  very  section  4  notification  has  been

struck down and declared null and void, and this being the

case, it would not be in the interest of justice to allow

the present appeal in favour of the Union of India, as this

would amount to a discrimination between two persons who are

otherwise similarly placed.   

Adverting  to  some  of  the  other  submissions  made  by

Ms.Pandey,  first  and  foremost,  in  Kulsum  R.  Nadiadwala’s

case,  the  High  Court  dismissed  the  writ  petition  filed

therein on the ground of there being a 12 years delay in

filing the writ petition, and not on the ground that there

was a one year delay as the Award in this case was passed

only  in  1986.   Secondly,  the  factum  of  notices  actually

being served in this case, as opposed to notices not being

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individually served in  Kulsum R. Nadiadwala’s case, apart

from making no difference to mandatory conditions that have

to be followed, as held in  Kulsum R. Nadiadwala, has been

repelled by the judgment under appeal as follows:  

“11.  Nevertheless,  we  are  dealing  with  the contentions raised by the First Respondent.  Perusal of the Writ Petition and in particular Clause (h) of Paragraph 4 thereof shows that a specific contention has been raised by the Petitioners that neither the Petitioners nor their predecessors were served with any notice and were not offered any opportunity of raising  objections  to  the  Notification  under  Sub- section (1) of Section 4 of the said Act. ……………………………………………………………………………………………………………………..

……………………………………………………………………………………………………………………….

Affidavit  of  Shri  Manoj  Shankarrao  Gohad,  the Special Land Acquisition Officer (4) is completely silent as far as this factual and legal challenge in this Petition is concerned. ………………………………………………………………………………………………………………………….

………………………………………………………………………………………………………………………….”

Insofar as the “per incuriam” point is concerned, this

can be disposed of by stating that even though newspaper

publication  of  the  section  4  notification  came  in  by

amendment for the first time in 1984, the requirement of

public  notice  where  the  land  is  situate  in  addition  to

publication in the Official Gazette, was always there from

the inception.  Kulsum R. Nadiadwala’s case did not deal

with newspaper publication at all. It only dealt with the

requirement  of  publication  in  the  Official  Gazette  and

public notices of the substance of the notification being

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given in the locality in which the lands are acquired, both

of  which  were  held  to  be  cumulative  and  mandatory

requirements of section 4.

So  far  as  the  Indore  Development  Authority’s  case

(supra) is concerned, the Constitution Bench is seized of

several questions, all of which pertain to the construction

of  section  24  of  the  Right  to  Fair  Compensation  and

Transparency  in  Land  Acquisition,  Rehabilitation  and

Resettlement Act, 2013.

This being the case, and regard being had to what we

have stated hereinabove, it is wholly unnecessary for us to

adjourn this case in order to await the judgment of the

Constitution Bench in this case.

Given the fact that this is a Defence project in which

possession  has  been  with  the  Union  since  1942,  the  same

facts  would  obtain  as  in  Kulsum  R.  Nadiadwala’s  case  in

which relief has been granted to Kulsum R. Nadiadwala.  This

case, therefore, cannot lead to a different conclusion on

similar facts.  

As to the argument that no declaration that the entire

section 4 notification is quashed inasmuch as the claim of

the appellants in Kulsum R. Nadiadwala’s case was restricted

only  to  50  per  cent  of  the  lands  in  question,  it  is

important to make a distinction between a declaration of law

which would bind other future cases under Article 141 of the

Constitution of India and an order made in the facts of the

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case which may equally be made to do substantial justice on

the facts of a given case, sometimes under Article 142.

On a reading of paragraph 16 of Kulsum R. Nadiadwala’s

judgment,  it  is  important  to  note  that  though  the

appellant’s claim was restricted to only 50 per cent of the

land  in  question,  so  far  as  the  other  50  per  cent  is

concerned, the judgment itself makes a reference to the fact

that the appellants are legal heirs of one deceased Ismail

Nadiadwala and that there was another claimant whose name

was Ibrahim Nadiadwala to whom, presumably, 50 per cent of

the property  went.  Since only  Ismail Nadiadwala’s  heirs

were prosecuting the appeal, this direction appears to have

been made.

This  being  the  case,  we  dismiss  the  appeal  of  the

Union.  

………………………………………………………., J. [ ROHINTON FALI NARIMAN ]

………………………………………………………., J. [ S. RAVINDRA BHAT ]

………………………………………………………., J. [ V. RAMASUBRAMANIAN ]

New Delhi; February 04, 2020.

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