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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5885   OF 2013 (Arising out of SLP(C) No. 27221 of 2011)

Gurbinder Kaur Brar and another ...Appellants

versus

Union of India and others ...Respondents With

CIVIL APPEAL NO.5884  OF 2013 (Arising out of SLP(C) No. 25387 of 2011)

Sardar Milkha Singh ...Appellant versus

Union of India and others ...Respondents

J U D G M E N T

G.S. SINGHVI, J.

1. Leave granted.

2. These  appeals  are  directed  against  order  dated  18.3.2011  passed  by  the  

Division Bench of the Punjab and Haryana High Court whereby the writ petitions  

filed by the appellants for quashing the acquisition of their land were dismissed  

along with a batch of other petitions.

3. At the outset, we may mention that the impugned order was set aside by this  

Court in Surinder Singh Brar and others v. Union of India and others (2013) 1 SCC  

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403  and  Notifications  dated  26.6.2006,  2.8.2006  and  28.2.2007  issued  by  the  

Chandigarh Administration under Sections 4(1) and 6(1) of the Land Acquisition  

Act,  1894 (for short,  ‘the 1894 Act’) for the acquisition of land for Phase-III of  

Chandigarh Technology Park were quashed.  

4. By Notification dated 1.10.2002 issued under Section 4(1) of the 1894 Act,  

the  Chandigarh Administration proposed  the  acquisition of  71.96  acres  land for  

various purposes including the Chandigarh Technology Park. The appellants filed  

detailed objections under Section 5A(1) because their land were also included in  

Notification dated 1.10.2002.  After making a show of hearing the objectors,  the  

Land Acquisition Officer,  Union Territory, Chandigarh submitted report with the  

recommendation that the land notified on 1.10.2002 may be acquired. The report of  

the  Land  Acquisition  Officer  was  accepted  by  the  officers  of  the  Chandigarh  

Administration and declaration dated 29.9.2003 was issued under Section 6(1) of the  

1894 Act for 56.76 acres land.  

5. The appellants challenged the acquisition of their land in Civil Writ Petition  

No.8545/2004 titled Gurbinder Kaur Brar and another v. Union of India and others  

and Civil Writ Petition No.12779/2004 titled Milkha Singh v. Union of India and  

others.  

6. Similar  petitions  were  filed  by  other  landowners  whose  land  had  been  

acquired for Phases-II and III of Chandigarh Technology Park. All the writ petitions  

were dismissed by the Division Bench of the High Court by the impugned order.  

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7. In Surinder Singh Brar and others v. Union of India and others (supra), this  

Court reversed the order of the High Court and quashed the acquisition of land for  

Phase-III of Chandigarh Technology Park and various other purposes specified in  

Notifications  dated  26.6.2006,  2.8.2006  and  28.2.2007.  While  dealing with  the  

question whether the officers of the Union Territory of Chandigarh other than the  

Administrator could issue notifications under Sections 4(1) and 6(1) of the 1894 Act,  

this Court referred to Article 239 of the Constitution (unamended and amended),  

Notifications dated 8.10.1968, 1.1.1970 and 14.8.1989 issued under Clause (1) of  

that  Article,  Notification  dated  25.2.1988  issued  by  the  Administrator,  Union  

Territory  of  Chandigarh  under  Section  3(1)  of  the  Chandigarh  (Delegation  of  

Powers) Act, 1987 (for short, ‘the 1987 Act’) and observed:

“The unamended Article 239 envisaged administration of the  States  specified  in  Part  C  of  the  First  Schedule  of  the  Constitution by the President through a Chief Commissioner  or a Lieutenant Governor to be appointed by him or through  the Government of a neighbouring State. This was subject to  other provisions of Part VIII of the Constitution. As against  this, amended Article 239 lays down that subject to any law  enacted  by  Parliament  every  Union  Territory  shall  be  administered by the President acting through an Administrator  appointed by him with such designation as he may specify. In  terms of clause (2) of Article 239 (amended), the President  can appoint the Governor of a State as an Administrator of an  adjoining  Union  territory  and  on  his  appointment,  the  Governor  is  required  to  exercise  his  function  as  an  Administrator independently of his Council of Ministers. The  difference in the language of the unamended and amended  Article  239  makes  it  clear  that  prior  to  1-11-1956,  the  President  could  administer  Part  C  State  through  a  Chief  Commissioner  or  a  Lieutenant  Governor,  but,  after  the  amendment,  every  Union  Territory  is  required  to  be  administered  by  the  President  through  an  Administrator  

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appointed by him with such designation as he may specify. In  terms of clause (2) of Article 239 (amended), the President is  empowered  to  appoint  the  Governor  of  State  as  the  Administrator  to  an  adjoining  Union  Territory  and  once  appointed, the Governor, in his capacity as Administrator, has  to act independently of the Council of Ministers of the State of  which he is the Governor.

A reading of the Notification issued on 1-11-1966 (set out in  para 42) shows that in exercise of the power vested in him  under  Article  239(1),  the  President  directed  that  the  Administrator  shall  exercise  the  power  and  discharge  the  functions of the State Government under the laws which were  in force immediately before formation of the Union Territory  of  Chandigarh.  This  was  subject  to  the  President’s  own  control and until further orders. By another notification issued  on the same day,  the President directed that all orders and  other instruments made and executed in the name of the Chief  Commissioner  of  Union  Territory  of  Chandigarh  shall  be  authenticated by the signatures of the specified officers. These  notifications clearly brought out the distinction between the  position of  the  Administrator  and  the  Chief  Commissioner  insofar as the Union Territory of Chandigarh was concerned.  Subsequently, the President appointed the Governor of Punjab  as  Administrator of the Union Territory of Chandigarh and  separate notifications were issued for appointment of Adviser  to the Administrator.  The officers appointed as Adviser are  invariably members of the Indian Administrative Service.

After about 2  years of the issuance of the first notification  under Article 239(1) of the Constitution, by which the powers  and  functions  exercisable  by  the  State  Government  under  various laws were generally entrusted to the Administrator,  Notification dated 8-10-1968 (set out in para 44) was issued  and the earlier notification was modified insofar as it related  to the exercise of powers and functions by the Administrator  under the Act and the President directed that subject to his  control and until further orders, the powers and functions of  “the  appropriate  Government”  shall  also  be  exercised  and  discharged by the Administrator. The Notification dated 8-10- 1968 was superseded by the Notification dated 1-1-1970 (set  out in para 45) and the President directed that subject to his  control and until further orders, the powers and functions of  “the  appropriate  Government”  shall  also  be  exercised  and  discharged  by  the  Administrator  of  every  Union  territory  

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whether known as the Administrator, the Chief Commissioner  or the Lieutenant Governor. The last Notification in the series  was issued on 14-8-1989 (set out in para 46) superseding all  previous  notifications.  The  language  of  that  notification  is  identical to the language of the Notification dated 1-1-1970.

There is marked distinction in the language of the notifications  issued  under  Article  239(1)  of  the  Constitution.  By  the  Notification  dated  1-11-1966  (set  out  in  para  42),  the  President generally delegated the powers and functions of the  State  Government under various laws  in force  immediately  before  1-11-1966  to  the  Administrator.  By  all  other  notifications,  the  power  exercisable  by  “the  appropriate  Government”  under  the  Act  and  the  Land  Acquisition  (Companies)  Rules,  1963  were  delegated  to  the  Administrator. It is not too difficult to fathom the reasons for  this departure from Notification dated 1-11-1966. The Council  of Ministers whose advice constitutes the foundation of the  decision taken by the President was very much conscious of  the  fact  that  compulsory  acquisition  of  land,  though  sanctioned by the provisions of the Act not only impacts lives  and livelihood of the farmers and other small landholders, but  also  adversely  affects  the  agriculture,  environment  and  ecology of  the  area.  Therefore,  with  a  view to  avoid  any  possibility of misuse of power by the executive authorities, it  has been repeatedly ordained that powers and functions vested  in “the appropriate Government” under the Act and the 1963  Rules shall be exercised only by the Administrator. The use of  the expression “shall also be exercised and discharged” in the  Notifications dated 8-10-1968, 1-1-1970 and 14-8-1989 is a  clear pointer in this direction. The seriousness with which the  Central Government has viewed such type of acquisition is  also reflected from the decision taken by the Home Minister  on 23-9-2010 (set out in para 35) in the context of the report  of the Special Auditor and the one-man committee. Thus, the  acquisition of land for and on behalf of the Union Territories  must  be  sanctioned  by  the  Administrator  of  the  particular  Union territory and no other officer is competent to exercise  the power vested in “the appropriate Government” under the  Act and the Rules framed thereunder.

We may now advert to the Notification dated 25-2-1988 (set  out in para 47) issued under Section 3(1) of the 1987 Act,  vide  which  the  Administrator  directed  that  any  power,  authority or jurisdiction or any duty which he could exercise  

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or discharge by or under the provisions of any law, rules or  regulations as applicable to the Union Territory of Chandigarh  shall  be  exercised  or  discharged by the  Adviser  except  in  cases or class of cases enumerated in the Schedule. There is  nothing in the language of Section 3(1) of the 1987 Act from  which it can be inferred that the Administrator can delegate  the power exercisable by “the appropriate Government” under  the  Act  which  was  specifically  entrusted  to  him  by  the  President under Article 239(1) of the Constitution. Therefore,  the Notification dated 25-2-1988 cannot be relied upon for  contending that the Administrator had delegated the power of  “the appropriate Government” to the Adviser.”

The Court then considered the question whether the reports submitted by the Land  

Acquisition Officer under Section 5A(2) were vitiated due to non-consideration of  

the objections filed by the landowners and answered the same in affirmative by  

recording the following observations:

“A cursory reading of the reports of the LAO may give an  impression that he had applied mind to the objections filed  under Section 5A(1) and assigned reasons for not entertaining  the same, but a careful analysis thereof leaves no doubt that  the  officer  concerned  had  not  at  all  applied  mind  to  the  objections of the landowners and merely created a facade of  doing  so.   In  the  opening  paragraph  under  the  heading  “Observations”,  the  LAO  recorded  that  he  had  seen  the  revenue  records  and  conducted  spot  inspection.  He  then  reproduced the Statement of Objects and Reasons contained  in the Bill which led to  the enactment of the Punjab New  Capital (Periphery) Control Act, 1952 and proceed to extract  some  portion  of  reply  dated  31.7.2006  sent  by  the  Administrator to Surinder Singh Brar.  

In the context of the statement contained in the first line of the  paragraph  titled  “Observations”,  we  repeatedly  asked  Shri  Sudhir Walia, learned counsel assisting Dr. Rajiv Dhawan to  show as to when the LAO had summoned the revenue records  and when he had conducted spot inspection but the learned  counsel could not produce any document to substantiate the  statement contained in the two reports of the LAO.  This leads  

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to an inference that, in both the reports, the LAO had made a  misleading  and  false  statement  about  his  having seen  the  revenue records  and conducted spot  inspection. That  apart,  the reports  do not  contain any iota of consideration of the  objections filed by the landowners. Mere reproduction of the  substance of the objections cannot be equated with objective  consideration thereof in the light of the submission made by  the objectors during the course of hearing. Thus, the violation  of the mandate of Section 5A(2) is writ large on the face of  the reports prepared by the LAO.

The  reason  why the  LAO did  not  apply  his  mind to  the  objections  filed by  the  appellants  and  other  landowners  is  obvious.  He  was  a  minion  in  the  hierarchy  of  the  administration of the Union Territory of Chandigarh and could  not have even thought of making recommendations contrary to  what was contained in the letter sent by the Administrator to  Surinder Singh Brar.  If he had shown the courage of acting  independently  and  made  recommendation  against  the  acquisition of land, he would have surely been shifted from  that post and his career would have been jeopardized.  In the  system of governance which we have today, junior officers in  the administration cannot even think of, what to say of, acting  against  the  wishes/dictates  of  their  superiors.  One  who  violates this unwritten code of conduct does so at  his own  peril and is described as a foolhardy. Even those constituting  higher strata of services follow the path of least resistance and  find it  most  convenient  to  tow the  line of  their  superiors.  Therefore, the LAO cannot be blamed for having acted as an  obedient subordinate of the superior authorities, including the  Administrator. However, that cannot be a legitimate ground to  approve  the  reports  prepared  by  him  without  even  a  semblance  of  consideration  of  the  objections  filed  by  the  appellants and other landowners and we have no hesitation to  hold that the LAO failed to discharge the statutory duty cast  upon him to prepare a report after objectively considering the  objections filed under Section 5A(1) and submissions made by  the objectors during the course of personal hearing.”

The Court also analysed the provisions of Sections 4(1), 5A, 6(1) of the 1894 Act,  

referred to several judgments and observed:

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“What needs to be emphasised is that hearing required to be  given under Section 5-A(2) to a person who is sought to be  deprived  of  his  land  and  who  has  filed  objections  under  Section 5-A(1) must be effective and not an empty formality.  The Collector who is enjoined with the task of hearing the  objectors has the freedom of making further enquiry as he may  think necessary. In either eventuality, he has to make report in  respect  of  the  land  notified  under  Section  4(1)  or  make  different reports in respect of different parcels of such land to  the appropriate Government containing his recommendations  on  the  objections  and  submit  the  same  to  the  appropriate  Government along with the record of proceedings held by him  for  the  latter’s  decision.  The  appropriate  Government  is  obliged to consider the report, if any, made under Section 5- A(2) and then record its satisfaction that the particular land is  needed for  a  public purpose.  This  exercise  culminates  into  making a  declaration that  the  land is  needed  for  a  public  purpose and the declaration is to be signed by a Secretary to  the  Government  or  some  other  officer  duly  authorised  to  certify its  orders.  The formation of opinion on the issue of  need of land for a public purpose and suitability thereof is sine  qua non for issue of a declaration under Section 6(1). Any  violation of  the  substantive right  of  the  landowners  and/or  other  interested  persons  to  file  objections  or  denial  of  opportunity of personal hearing to the objector(s) vitiates the  recommendations  made  by  the  Collector  and  the  decision  taken  by  the  appropriate  Government  on  such  recommendations.  The  recommendations  made  by  the  Collector without duly considering the objections filed under  Section 5-A(1) and submissions made at  the hearing given  under Section 5-A(2) or failure of the appropriate Government  to take objective decision on such objections in the light of the  recommendations  made  by  the  Collector  will  denude  the  decision of the appropriate Government of statutory finality.  To  put  it  differently,  the  satisfaction  recorded  by  the  appropriate Government that the particular land is needed for  a public purpose and the declaration made under Section 6(1)  will  be  devoid  of  legal  sanctity  if  statutorily  engrafted  procedural safeguards are  not adhered to by the authorities  concerned or  there  is  violation of  the  principles  of  natural  justice.  The  cases  before  us  are  illustrative  of  flagrant  violation of the mandate of Sections 5-A(2) and 6(1).”

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8. Shri Sudhir Walia, learned counsel for the Chandigarh Administration made  

valiant effort to convince us that the view taken in Surinder Singh Brar and others v.  

Union of India and others (supra) on the interpretation of the provisions of the 1987  

Act  needs  reconsideration  but  we  do  not  find  any  valid  ground  to  accept  the  

submission of the learned counsel. In our view, Section 3(1) of the 1987 Act does  

not  empower  the  Administrator  to  delegate  the  functions  of  the  “appropriate  

government” to any officer or authority specified in the notification issued under that  

section because the Presidential notification does not provide for such delegation.

9. We also agree with the learned counsel for the appellants that the report of the  

Land Acquisition Officer was vitiated due to total non-application of mind by the  

concerned officer to large number of substantive objections raised by the appellants  

under Section 5A(1). He mechanically rejected the objections and senior officers of  

the Chandigarh Administration accepted the report of the Land Acquisition Officer  

despite the fact that the same had been prepared in violation of Section 5A(2).  

10. Shri Walia made a last ditched effort to save Notification dated 1.10.2002 and  

for this purpose  he relied upon order dated  27.2.2013 passed  by the coordinate  

Bench  in  Civil  Appeal  No.  1964/2013  titled  Lajja  Ram  and  others  v.  Union  

Territory, Chandigarh and others. We have carefully gone through that order and are  

of the view that Notification dated 1.10.2002 cannot be saved at this belated stage  

and the Competent Authority cannot issue declaration under Section 6(1) of the Act  

after 11 years of the issue of notification under Section 4(1).  We may add that in  

view of the law laid down by the Constitution Bench in Padma Sundara Rao v. State  

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of  Tamil Nadu  (2002)  3  SCC  533,  which was  followed  in a  large  number  of  

judgments,  the Chandigarh Administration cannot now issue  a  declaration under  

Section 6(1) after rectifying the illegalities committed in the preparation of report  

under Section 5A(2) and issue of the earlier declaration.

11. In the result, the appeals are allowed, the impugned order is set aside and  

Notifications dated 1.10.2002 and 29.9.2003 are quashed insofar as the same relate  

to the lands of the appellants. The parties are left to bear their own costs.

..........................................J. (G.S. SINGHVI)

..........................................J. (V. GOPALA GOWDA)

New Delhi; July 22, 2013.

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