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 JUDGMENT
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,JUDGMENTalive 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 JUDGMENTby 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),_
(ii) 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 —
(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), —
(a) tender payment of eighty per centum of the
compensation for such land as estimated by him to the
persons interested entitled thereto, and
(b)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 JUDGMENT 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 JUDGMENTeffect 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 JUDGMENTdue 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 JUDGMENTsubjected 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 JUDGMENT 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.
[ABHAY MANOHAR SAPRE] New Delhi; September 7, 2015.