Sh. Jai Kishan vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 755 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner claims to be the bhumidaar/exclusive owner of 1/4th share of the total agricultural land to the extent of 1/5th share in Khasra Nos. 37/9, 10, 38/6, 7 Min. 37/11, 12,19, 38/14, 15, 2/24 measuring about 55 Bigha situated within the revenue estate of Village Holambi Kalan, Delhi. They claim to be in possession of the land for a long time and due entries in that regard exist in the khasra girdwari which has also been placed on record. A notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was issued on 27.1.2003 for acquisition of the land including the above land of the petitioner, in furtherance to which a declaration under Section 6 of the Act was issued on 23.1.2004. Award bearing No. 15/2005-06/DC/NW dated 23.8.2005 was made by the Collector awarding compensation to the claimants @ Rs. 12,60,000/-. The petitioner claims the amount of compensation in his own right and stated that there is some dispute in that regard with respondent No. 4 who is the daughter-in-law of the petitioner. The petitioner claims that he does not have good relations with his son and daughter-in-law as they are involved in criminal activities and various FIRs have been registered against them. The petitioner filed an application for withdrawal of compensation to which respondent No. 4 filed objections on 4.1.2006 and claimed apportionment of the awarded compensation. Despite their being specific contest by the parties and the fact that respondent No. 4 was not entitled to any compensation in accordance with the plea taken by the petitioner, the Land Acquisition Collector passed the following order:

17.2.2006

Present

1. Sh. G.C. Nasan Counsel for objector.

2. Sh. V.P. Rana Counsel for claimant.

Heard the arguments of both the counsel.

I refer the dispute Under Section 30-31 to the court of ADJ.

2. This order has been challenged in the present writ petition by the petitioner as according to his contention he is the recorded bhumidaar and is entitled to receive the entire compensation and there is no bonafide or genuine dispute in that regard. Respondent No. 4 has no interest in the property, as such the reference is not proper and valid and in any case it is non-speaking. While referring a matter to the court of competent jurisdiction, the Collector exercises powers which are to some extent determinative in nature and substance. He has to give a reasonable conclusion that there are disputes in regard to apportionment of the awarded compensation. Such disputes could be with regard to apportionment, or any part thereof, or even persons to whom such compensation is payable. This process cannot be termed as an 'administrative or routine action'. The parties have a right to be heard and the Collector is obliged to pass an order which at the face of it shows application of mind, particularly when the correctness of such an order can be questioned in a writ petition before the High Court. Now, it is a settled principle of law that even in administrative action the authorities are required to pass proper orders in compliance with the principles of natural justice. Absence of any reason, whatsoever, would offend the basic rule of law so would violation of principles of natural justice. Compliance to the provisions of natural justice is an inbuilt essential of basic rule of law. Even under the provisions of Section 6 of the Act, before making a declaration, the Collector is expected to decide the objections filed by the claimants under Section 5A after hearing and by a reasoned order. Reference in this regard can be made to the case of Chatro Devi v. Union of India and Ors. where the Court held as under:

Unnecessary delay in submission of files, keeping the proceedings even after issuance of Section 4 notification pending, do certainly demonstrate non-adherence to accept administrative norms of functioning in Government hierarchy. Such administrative decisions have far-reaching consequences and therefore they should be taken not only with proper application of mind but as expeditiously as possible. 'Planned Development of Delhi' has repeatedly been held to be a public purpose and reference in this regard can be made amongst others to the judgment in Aflatoon and Ors. v. Lt. Governor of Delhi and Ors. and P.S. Gill and Ors v. UOI and Ors 2nd (1979) I Delhi 601, Bhagat Singh v. State of U.P. , Roshanara Begum v. Union of India and Ors. (FB) and Gandhi Grah Nirman Sehkari Samiti Ltd. and Ors. v. State of Rajasthan and Ors. .

27. Administrative action can be subjected to control by judicial review on the ground of illegality, irrationality and procedural improprieties of serious and prejudicial consequences. In the case of Indian Railway Construction Co. Ltd. v. Ajay Kumar , the Court held that "an act administrative or legislative can be vitiated if there is non-application of mind to the relevant factors or his exercise on the basis of non-existent facts or is patently so erroneous or suffers from manifest error of law, facts or procedure. None of these ingredients can be traced in the present case to the extent that the power of judicial review of administrative action would require the Court to invalidate the notifications in question. Undoubtedly, objections were invited from the record. It is clear that the objectors were heard, records based reports were submitted under Section 5-A to the Lt. Governor who after applying his mind approved the acquisition and directed the issuance of declaration under Section 6 of the Act. This can safely be concluded on the basis of the record produced before the Court.

28. For quashing of an administrative decision, based upon exercise of legislative power, it is necessary that the order or decision of the concerned authority should suffers from lack of proprietary or procedural impropriety or at the face of it, it should be illegal. The authorities might have acted with some lack of administrative proprietary and did not maintain the records meticulously so as to invite some criticism, but this by itself would not be sufficient ground for judicial intervention by the Courts. Reliance placed by the petitioners upon the judgment of the Supreme Court in Raja Anand Brahma Shah v. The State of Uttar Pradesh and Ors. is again of no help to them. In that case the Court had held that even though the power of the State Government has been formulated under Section 17(4) of the Act in subjective terms, the expression of opinion of the State Government can be challenged as ultra vires in a Court of law if it could be shown that the State Government never applied its mind to the matter or that the action was malafide.

29. In any case, this issue is not a live one because a Constitution Bench of the Supreme Court held in Jayantilal Amrit Lal Shodhan v. F.N. Rana and Ors. that a report prepared by a Collector under Section 5-A of the Act is an administrative report. The Constitution Bench also held in paragraph 19 and 20 of the Report that the Collector does not make a judicial or a quasi-judicial inquiry.

3. Even if passing of an order under Section 5A is taken to be an administrative act, still it has repeatedly been held by the courts that such orders should be a reasoned one. Reasons are the soul of a quasi-judicial or even administrative order, which has the effect of vesting the parties with civil consequences, material or otherwise. Reference in this regard can also be made to the judgment in the case Dr. Sudha Suri v. Union of India and Ors. 2002(1) PLR 453 where the court held as under:

Providing of reasoning in administrative action may not be of essence in all such action. In order to attach credence to the process f selection and fairness to the decision making process, it appears to be somewhat obligatory upon the authorities concern to provide some kind of expression to the thought of processing which ultimately culminates into final decision. Reasoning as understood in its wider concept, unlike arguments contended in a court of law would be desirable basis for visualising an ideal situation of administrative decision. To avoid apparent arbitrariness, the records must indicate an absolute criteria for determining the choice of the authority from amongst eligible candidates. The object sought to be achieved is fairness, proper application of mind and appropriate selection. Fairness in administrative action must not only be done but must also appears to have done in consonance with the basic provisions of law as well as rules.

The Hon'ble Supreme Court of India in the case of Union of India and Ors. v. E.G. Nambudiri 1991 (2) S.C.R. 675, while considering the desirability of administrative authorities recording reasons held as under:

Where an administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although it is always desirable to record reasons to avoid any suspicion, where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal. But in the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered illegal for absence of reasons.

4. There is nothing stated in the impugned order dated 17.2.2006 which could even remotely suggest as to why the Collector has made a reference under Sections 30/31 of the Code, despite the claim of the petitioner that he is the only recorded bhumidaar. In terms of the judgment of this Court in the case of Randhir Singh v. Union of India RFA No. 369/2002 decided on 30.5.2002 and case of Sri Chand v. Land Acquisition Collector in W.P.(C) No. 1573/2004 decided on 3.3.2005. The petitioner had produced records before the authorities and have even annexed to the writ petition khataoni consolidation wherein he has been recorded as onwer/bhumidaar to the extent of his 1/4th share. Unless the exception was shown, a recorded bhumidaar would normally be entitled to receive compensation as per the revenue records. In fact, in preference to all others, a recorded bhumidaar has a legal right to receive the compensation. Judgment of this Court in the case of Sri Chand (supra) clearly enunciates this principle. In face of this, where was the need for the Collector to make a reference merely because a family member or wife of a family member who was admittedly not recorded as bhumidaar has chosen to raise objections. Determination in any form having civil consequences on the parties to the dispute would essentially invite adherence to both the facets of the principles of natural justice as afore-referred. Even no record has been produced before us to show that the order of the Collector was passed by any authority and with proper reasons. The order is void of reasoning so is the record. This, in our opinion, is a patent violation of principles of natural justice. To be heard, and to know the reasons for rejection or acceptance of request of a party is a legitimate right of the parties to the lis. Violation of either of them, particularly in the facts and circumstances of the present case, would invite judicial intervention.

5. For the reasons afore-recorded, we set aside the order dated 17.2.2006 with a further direction to the respondent to hear the parties and pass an appropriate order in accordance with law within one month from the date of pronouncement of this order.

6. The writ petition is accordingly disposed of with the above direction, while leaving the parties to bear their own costs.

7. The parties are directed to appear before the Land Acquisition Collector on 15.5.2006.