Janki Devi Mahavidyalaya vs Union Of India And Ors.
1997 Latest Caselaw 181 Del

JUDGMENT

C.M. Nayar, J.

(1) The petitioner has moved this Court under Article 226 of the Constitution of India for the following reliefs :

(1)writ of mandamus restraining the respondents from taking possession of the land chalked out by the members of the L & Do and the Ridge Management Board;

(2)a declaration that the action of the respondents in acquiring the land of the petitioner without the authority of law and without paying adequate and just compensation to be a nullity in law;

(3)pass an order directing the respondents to give the petitioner similar alternate land close by for its hostel premises;

(4)pass an order directing the respondents to pay compensation at market value plus 30% of the market value in lieu of the compulsory nature of acquisition.

(5)pass an order awarding costs of the petition.

(2) The brief facts of the case as stated in the writ petition are that the premises of the petitioner were leased out to Banarsi Das Trust by President of India through the Land and Development officer on February 2, 1960 and on December 13, 1961 the said Trust entered into an agreement with Governing Body of petitioner to transfer leasehold rights granted by L & Do to Governing Body of the petitioner. The petitioner entered into agreements with the President of India for lease of 6.485 acres, 3.95 acres and 2.825 acres of land for playground, college building and hostel and staff quarters respectively. The Hon'ble Supreme Court directed Land and Development Officer on January 3, 1996 to issue notices to all 63 Institutions along the Ridge nominating them that the area occupied by these Institutions fall within the Ridge area and would have to be vacated. The said Institutions were asked to appear before Forest Settlement Officer on January 31, 1996 and the said officer on March Ii, 1996 made an order that the land in question had been allotted prior to August 1, 1990 and taking into account the public utility of the Institution in the realm of education, the huge financial implications involved in the acquisition and the fact that the land neither constitutes part of the Ridge, it was held that the land of the petitioner cannot be made a part of the reserved forest. The Hon'ble Supreme Court directed Mr. Kishan Mahajan, Advocate and Mr. U.S. Jolly, Commissioner L.M. to visit the Educational Institutions along the Ridge and submit report indicating the area which is necessary for future functioning of Educational Institutions and identify areas that can be reserved for future development.

(3) The inspection report was submitted by the Committee which dealt with the case of the petitioner as follows : Janki Devi Mahavidyalaya: Shri Banarsi Das Chandiwala Seva Smarak Trust, New Delhi was allotted 13.26 acres of land by the Land & Development Office and it was leased out in 1960. Later on three separate leases/agreements for lease were executed for-

I.5.016 (for play ground) II. 4.310 (for college building) III. 2.244 (for hostel building, staff quarters attached with college) Total land of these three leases works out to 11.570. Shri Banarsi Das Chandi Wala Seva Smarak Trust transferred the lease hold rights granted by the Land & Development Office to the Governing Body of Janki Devi Mahavidyalaya. Thereafter a fresh lease was executed in favour of Janki Devi Mahavidyalaya on 28.9.70 for 13.26 acres land in three stages as per details given below : I - 6.485 (for play ground) (Temporary lease dated 12.9.70) Ii - 3.950 (for college building) agreement for lease dated 28.9.70) Iii - 2.825 (for staff quarters) (agreement for lease 28.9.70) At site college is in actual possession of 13.580 acres. Thus they are in 369 possession of 1548.80 sq. yds. (approx.) excess land. About 2.5 to 3 acre land which has not been developed and utilised can be retrieved to the Ridge. This land is towards Ridge side and looks like rocky forest area." The Supreme Court passed an order on September Ii, 1996 and gave the following

directions in the case of the petitioner :

"JANKI Devi Mahavidylaya This Institution has been allotted 11.570 acre by the Land and Development officer in the year 1960. The college is in actual possession of 13.580 acre of land. The college is in possession of 1548.80 sq. yds. (approx.) excess land. This land shall be taken over by the Ridge Management Board within two months from today. The Mahajan Report further indicates that about 2.5 to 3 acres of land, which has been allotted to the Institution, has not been developed and utilised. According to the Mahajan Report, this land is towards the Ridge side and looks like rocky forest area. We direct that this area which has not been utilised by the Institution shall be taken over by the Ridge Management Board. If any price has been paid by the Institution for this area in the year 1960, the same shall be returned to the Institution by the Land & Development Office with 10% interest. If the land was given without charging any money, then nothing need be paid to the Institution. The Ridge Management Board shall take over possession of this area within two months from today."

(4) The Land and Development Office in view of the above directions, issued the Communication dated January 19,1997 which is filed as Annexure P6 to the writ petition asking the petitioner to hand over 3.523 acre of unutilised and undeveloped land adjoining the 'Ridge' as per the attached sketch plan to the 'Ridge Management Board' on January 21,1997 positively so that the Supreme Court could be apprised of the same. The petitioner felt aggrieved by this Communication.

(5) Mr. Shanti Bhushan has contended that: (a) Article 300A of the Constitution of india provides that ''noperson shall be deprived of his property save by authority of law". The necessary action can only be taken under the provisions of the Land Acquisition Act and the order of the Supreme Court is, accordingly, a nullity and cannot be acted upon; (b) in view of the fact that the petitioner is entitled to compensation, as permissible in law, as well as solatium and interest, the order passed on September Ii, 1996 by the Supreme Court is without jurisdiction, contrary to law and, therefore non est.

(6) Strong reliance is placed on the Constitution Bench judgment of the' Apex Court as reported in A.R. Antulay v. R.S. Nayak and Another, . The question of law which arose in this case is so stated in paragraph 19 which reads as follows : "19.In this appeal two questions arise, namely, (1) whether the directions given by this Court on February 16, 1984 in R.S. Nayak v. A.R. Antulay, withdrawing the Special Case No. 24 of 1982 and Special Case No. 3 of 1983 arising out of the complaint filed by one Shri P.B. Samant pending in the Court of Special Judge, Greater Bombay, Shri R.B. Sule, and transferring the same to the High Court of Bombay with a request to the Chief Justice to assign these two cases to a Sitting Judge of the High Court, in breach of Section 7(1) of the Act of 1982 which mandates that offences as in this case shall be tried by a Special Judge only thereby denying at least one right of appeal to the appellant was violative of Articles 14 and 21 of the Constitution and whether such directions were at all valid or legal, and (2) if such directions were not at all valid or legal in view of the order dated April 17,1984 referred to hereinbefore, is this appeal sustainable or the grounds therein justiciable in these proceedings. In other words, are the said directions in a proceeding inter parties binding even if bad in law or violative of Articles 14 and 21 of the Constitution and as such are immune from correction by this Court even though they cause prejudice and do injury ? These are the basic questions which this Court must answer in this appeal."

Similar reference is made in paragraphs 35 and 36 which read as follows : "35.The second question that arises here as if such a wrong direction has been given by this Court can such a direction inter parties be challenged subsequently. This is really a value perspective judgment. 36. In Kiran Singh v. Chaman Paswan Venkatarama Ayya, J. observed that the fundamental principle is well established that a decree passed by a Court without jurisdiction is a nullity, and that its validity could be set up whenever and wherever it is sought to be enforced or relied upon - even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject- matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."

(7) The question now arises as to whether it is open for the High Court to entertain the arguments as canvassed by Mr. Shanti Bhushan and hold that the order passed by the Supreme Court is without jurisdiction or is a nullity. I am afraid this cannot be done. Even in the case otA.R. Antulay (supra) the Constitution Bench of the Supreme Court chose to review the earlier order and directions and for that purpose a Larger Bench was constituted. Paragraphs 41 and 42 of the judgment will reiterate the position and the Supreme Court set aside the judgment as pronounced by the earlier Bench on the reasons as stated herein : "41.In the aforesaid view of the matter and the principle reiterated, it is manifest that the appellant has not been ordered to be tried by a procedure mandated bylaw, but by a procedure which was violative of Article 21 of the Constitution. That is violative of Articles 14 and 19 of the Constitution also, as is evident from the observations of the Seven Judges Bench judgment in Anwar Ali Sarkar case where this Court found that even for a criminal who was alleged to have committed an of fence, a special trial would be per sc illegal because it will deprive that accused of his substantial and valuable privileges of defense which, others similarly charged, were able to claim. As Justice Vivian Bose observed in the said decision at page 366 of the report, it matters not whether it was done in good faith, whether it was done for the convenience of Government, whether the process could be scientifically classified and labelled, or whether it was an experiment for speedier trial made for the good of society at large. Justice Bose emphasised that it matters not how lofty and laudable the motives were. The question which must be examined is, can fair minded, reasonable, unbiased resolute men regard that with equanimity and and call it reasonable, just and fair, regard it as equal treatment and protection in the defense of liberties which is expected of a sovereign democratic republic in the conditions which are obtained in India today. Judged by that view the singling out of the appellant in this case for a speedier trial by the High Court for an offence of which the High Court had no jurisdiction to try under the Act of 1952 was, in our opinion, unwarranted, unprecedented and the directions given by this Court for the said purpose, were not warranted. If that is the position, when that fact is brought to our notice we must remedy the situation. In rectifying the error, no procedural inhibitions should debar this Court because no person should suffer by reason of any mistake of the Court. The Court, as is manifest, gave its directions on February 16,1984. Here no rule of resjudicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions. In this connection, reference may be made to the decision of the Gujarat High Court in Soni Vrajlal Jethalal v. Soni Jadavji Govindji where D.A. Desai, J. speaking for the Gujarat High Court observed that no act of the Court or irregularity can come in the way of justice being done and one of the highest and the first duty of all Courts is to take care that the act of the Court does not injury to the suitors. 42. It appears that when this Court gave the aforesaid directions on February 16, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sakar case.SeeHalsbury's Laws ofEngland,4thEdn., Vol. 26, Page 297, Para 578 and page 300, the relevant notes 8, Ii and 15; Dias onJurisprudence,5th Edn., pages 128 and 130; Youngv.BristolAeroplane Co. Ltd. Also see the observations of Lord Goodard in Moore v. Hewitt and Penny v. Nicholas, "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling. Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1982 and Articles 14 and 21 of the Constitution, these directions were legally wrong."

(8) In the present case, the petitioner exhausted all its remedies before the Supreme Court and it is so stated in the list of dates filed with this petition that subsequently a review petition which was filed was also dismissed. The matter was examined by that Court and necessary orders were passed as a result of which the petitioner was asked to surrender the excess land. The matter has reached finality and it will neither be open for this Court to exercise jurisdiction to review that order nor desirable to examine the pleas as raised by learned Counsel for the petitioner. Article 141 of the Constitution of India clearly states "that the law declared by the Supreme Court shall be binding on all Courts within the Territory of India." For the aforesaid reasons, this petition is misconceived and devoid of merit. The same is dismissed in limine.