Delhi High Court

Mother Garjiya Educational And ... vs Union Of India & Ors. on 27 August, 2008

Author: Pradeep Nandrajog

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     WP(C) 2099/2008

      MOTHER GARJIYA EDUCATIONAL AND CULTURAL SOCIETY
                                                 ....Petitioner
              Through: Mr.R.K.Anand, Sr.Adv.
                       with Mr.Manu Nayar, Adv. and
                       Mr.Hameed S.Shaikh, Adv.


                            VERSUS

     UNION OF INDIA & ORS.             ...... Respondents
               Through: Mr.Sanjay Poddar, Adv.


                          RESERVED ON:
                           18.08.2008

                        DATE OF DECISION:
%                           27.08.2008


      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE SUNIL GAUR


1.   Whether reporters of local papers may be allowed
     to see the judgment?

2.   To be referred to the Reporter or not?

3.   Whether judgment should be reported in Digest?

:     PRADEEP NANDRAJOG, J.

1. Whether a statutory right of the petitioner stands

violated? If yes, what are the consequences thereof? These 2

questions arise for consideration in the instant petition.

2. On 7.4.2006 a notification (Annexure P-8) was issued

which were proposed to be acquired. The affected land owners

were called upon to exercise their right under Section 5A of the

said Act, namely if they desire, to file objections to the proposed

acquisition within 30 days of publication of the notification.

3. The petitioner is a society registered under the

Societies Registration Act. On its behalf, 2 of its office bearers

namely Shri Ashok Kumar Tiwari and Smt.Manju Tiwari preferred

objections on 2.5.2006.

4. 3 bigha and 1 biswa of land of the petitioner was

proposed to be acquired. In the objections filed it was pointed

out that after obtaining due sanction the society erected a school

building at site and a recognized school was being run therefrom.

It was pointed out that no public purpose would be served to

destroy the school for the purposes of constructing a road, the

stated purpose of the acquisition.

5. A declaration under Section 6 of the Land Acquisition

Act 1894 was issued on 4.4.2007.

6. Grievance of the petitioner is that in compliance with

the mandate of sub-section 2 of Section 5A of the Land

Acquisition Act 1894 the Collector did not afford opportunity of

being heard with respect to the objections filed to the proposed

acquisition.

7. It is the case of the respondent that an intimation was

also to all other persons who had filed objections to the proposed

acquisition notifying that the objections would be considered on

30.9.2006. It is stated that neither Shri Ashok Kumar Tiwari nor

Ms.Manu Tiwari appeared when the objections were considered

by the Collector. It is stated that 20 objectors appeared and after

considering the objections post grant of hearing to the persons

who had appeared before the Collector, a report, along with the

record of proceedings was submitted to the competent authority

on 4.12.2006. It is further stated that a report dated 9.5.2006

submitted by the Deputy Commissioner Revenue (South-West)

submitted to the Special Secretary to the Hon'ble Chief Minister

was also submitted, for consideration of the competent authority.

8. With respect to the report dated 9.5.2006 it was urged

that the petitioner and other persons had made representations

to the Chief Minister of Union Territory of Delhi praying that their

lands be not acquired for constructing a road and had made

suggestions regarding change of alignment of the road. That the

objections were the subject matter of the report dated 9.5.2006

as on same grounds an appeal was made to the Chief Minister to

intervene and have the acquisition dropped. Contention urged

was that in substance, objections filed by the petitioner were duly

considered.

9. The manner in which the notice issued by the Collector

acquisition, being not disclosed in the counter affidavit, the

relevant record of the Collector was summoned by this Court vide

order dated 12.8.2008. The record was produced at the hearing

on 18.8.2006. The same revealed that the stated notices were

sent by post. However, no dispatch register was produced. In

the record a report by the tehsildar's office finds a place

recording that the letters of intimation were posted to the

objectors. Sh.Sanjay Poddar, learned counsel for the respondents

stated that intimation dated 20.9.2006 was sent by ordinary post.

10. Learned counsel for the petitioner, with reference to

Section 45 of the Land Acquisition Act 1894, urged that the

mandate of law is to serve notices required to be served under

the Land Acquisition Act 1894 by personal delivery, failing which

by serving an adult male member of the family residing with the

objector, failing which by affixation at the address of the objector

and lastly by dispatching the notice to the noticee under

Regd.A.D.Post. Counsel urged that it is settled law that where a

statute prescribes a manner in which an act has to be performed

the same has to be performed as per the statute and in no other

manner.

11. Section 5A of the Land Acquisition Act 1894 reads as

under:-

"5A. Hearing of objections.- (1) Any person

WP(C) 2099/2008 page 4 of 14 interested in any land which has been notified under section 4, sub-section(1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be,

(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final.

(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."

12. Section 45 of the Land Acquisition Act 1894 reads as

under:-

"45. Service of notices.- (1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed in the case of a notice under section 4, by the officer therein mentioned, and in the case of any other notice, by an order of the Collector or the Judge.

(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named.

(3) When such person cannot be found, the service may be made on any adult male member of his family residing with him; if no such adult male member can be found, the notice may be served by fixing the copy

WP(C) 2099/2008 page 5 of 14 on the outer door of the house in which the person therein named ordinarily dwells or carries on business or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired:

Provided that if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business and registered under sections 28 and 29 of the Indian Post Office Act, 1898 (6 of 1998), and service of it may be proved by the production of, the addressee's receipt."

13. That Section 5A requires a personal hearing to be

afforded to be objector and is mandatory in character has been

recognized in a catena of authorities. One of the earliest decision

is reported as AIR 1964 SC 1217 Nandeshwar Prasad & Ors. vs.

U.P. Govt. & Ors. It was held in the said decision that Section 5A

confers a valuable right on the land owner to object to the

proposed acquisition of his property. The said view was

reiterated with an explanation in the decision reported as 1973

(2) SCC 337 Munshi Singh vs. Union of India where the Hon'ble

Supreme Court declared that Section 5A embodies a just and a

wholesome principle that a person, whose property is sought to

be acquired, should have a proper and a reasonable opportunity

by persuading the authorities concerned to give up the

acquisition of the property belonging to that person. In the

decision reported as 1975 (4) SCC 298 Shrimandir Sita Ramji vs.

Lt.Governor of Delhi & Ors. the Hon'ble Supreme Court declared

mandatory in character. In the decision reported as 1976 (3) SCC

719 Shri Farid Ahmed Abdul Samad & Anr. vs. Municipal

Corporation of the City of Ahmedabad & Anr. holding that the

denial of an opportunity of being heard under Section 5A was not

just a matter of failure of rules of natural justice but was a

mandatory requirement of law, in para 24 of the said report it

was observed as under:-

"24. We are clearly of opinion that Section 5A of the Land Acquisition Act is applicable in the matter of acquisition of land in this case and since no personal hearing had been given to the appellants by the Commissioner with regard to their written objections the order of acquisition and the resultant confirmation order of the State Government with respect to the land of the appellant are invalid under the law and the same are quashed. It should be pointed out, it is not a case of failure of the rules of natural justice as such as appeared to be the only concern of the High Court and also of the City Civil Court. It is a case of absolute non-compliance with a mandatory provision under Section 5A of the Land Acquisition Act which is clearly applicable in the matter of acquisition under the Bombay Act."

14. The afore-noted decisions were followed by the

Hon'ble Supreme Court in the decision reported as 1993 (4) SCC

255 Shyamnandan Prasad & Ors. vs. State of Bihar & Ors.

Reiterating the legal position it was held as under:-

"11. That the compliance of provisions of Section 5-A is mandatory, is beyond dispute. See in this connection, Shri Mandir Sita Ramji v. Lt.Governor of Delhi and Farid Ahmed Abdul Samad v. Municipal Corporation of the City of Ahmedabad. Affording of opportunity of being heard to the objector is a must.

WP(C) 2099/2008 page 7 of 14 The provision embodies a just and wholesome principle that a person whose property is being, or is intended to be, acquired should have the occasion to persuade the authorities concerned that his property be not touched for acquisition. This right is not absolute, however, if the appropriate Government, in its discretion, chooses to dispense with its applicability by invoking urgency provisions of Section 17 of the Act. But once Section 5-A is kept applicable, there is no cause to treat its provisions lightly or casually."

15. More recently, the significance of the inquiry under

Section 5A of the Land Acquisition Act 1894 and a hearing to the

person affected was re-stated by the Hon'ble Supreme Court in

the decision reported as 2004 SLT 712 Union of India & Ors. vs.

Mukul Hans wherein it was held that an inquiry under Section 5A

was not an idle formality but was a substantive right which can

be taken away only on the proof of valid reason.

16. Pertaining to Section 45 of the Land Acquisition Act

1894, a learned Single Judge of the Madras High Court in the

decision reported as AIR 1987 Madras 237 Muthu vs. Court of

Tamil Nadu held that the service of any notice under the Land

Acquisition Act 1894 in the manner provided therein is a mandate

of law and the due procedure and modalities having been

evolved, there cannot be a bypassing of the same by the officers,

and if they do so, they do it on their own peril. It was held that it

is not up to the officials to chose means of service as suited

them. It was held that as contemplated in sub-sections 1 and 2

of Section 45, service on the concerned person by delivering or

when service in said manner is not feasible can other means of

service contemplated by sub-section 3 be resorted to. Similar

view was taken by a learned Single Judge of this Court in the

decision reported as AIR 1976 Delhi 188 Ram Chand vs. Union of

India. It was held that when resort was made to sub-section 3 of

Section 45 of the Land Acquisition Act 1894 and the post office

was used as a agency to transmit the notice, the same had to be

by Regd.A.D.Post and service proved by producing the A.D. card.

17. Thus, ex-facie, there has been a violation of the

statutory provisions of the Land Acquisition Act 1894. That some

land owners who received the notices appeared before the

Collector is neither here nor there. It hardly be re-emphasized

that the petitioner denies that its office bearers who had filed the

objections received an intimation from the Collector of the date

on which the Collector proceeded to make an inquiry and

consider the objections.

18. The contention of learned counsel for the respondent

that the land owners affected by the acquisition had made

representation to the Chief Minister who had sought a report

which was furnished by the tehsildar on 9.5.2006 and submitted

to the Chief Minsiter through the Deputy Commissioner Revenue

(South-West) and that the said report was placed before the

competent authority i.e. the Lt.Governor of Delhi is neither here

Lt.Governor considered the said report submitted by the tehsildar

and secondly, which is a more firmer ground, is the fact that the

said report was outside the scope of the Land Acquisition Act

1894. As noted above, the crux of the matter is that the report

has to be submitted by the Collector after holding an inquiry

contemplated by Section 5A of the Land Acquisition Act 1894;

grant of personal hearing to the objectors is a mandatory

statutory provision of the law.

19. We would be failing if we do not note a decision cited

by Shri Sanjay Poddar, learned counsel for the respondents,

being (2003) 4 SCC 485 Tej Kaur & Ors. vs. State of Punjab & Ors.

In said case, the appellants before the Hon'ble Supreme Court

who had filed objections to the notification issued under Section 4

of the Land Acquisition Act 1894 were admittedly not given

personal hearing pertaining to the objections filed by them. The

High Court had refused to quash the declaration issued under

Section 6 of the Land Acquisition Act 1894. The said decision was

upheld by the Hon'ble Supreme Court.

20. A perusal of para 6 of the decision in Tej Kaur's case

(supra) shows that the Hon'ble Supreme Court reiterated that law

requires a personal hearing to be granted to an objector and if

not so done, it would be a violation of the procedure prescribed

under Section 5A of the Land Acquisition Act 1894 causing

land is sought to be acquired. Thus, the said decision does not

lay down a rule of law contrary to what was enumerated and

settled in the earlier decisions pronounced by the Hon'ble

Supreme Court. However, on facts it was noted that out of 6

acres of land which was proposed to be acquired only 1½ acres

was actually acquired revealing thereby that the objections were

considered by the Collector. But, more fundamentally, it was

noted that the declaration under Section 6 was made on

18.3.1992. The appellant allowed the acquisition proceedings to

continue till the award was passed and only thereafter the writ

petition was filed on 12.4.1994 praying that the declaration under

Section 6 of the Land Acquisition Act 1894 and the resultant

award be quashed. From said conduct of the appellants the

Hon'ble Supreme Court drew an inference that the appellants

were not serious in pursuing their statutory remedy. It was

additionally noted in para 7 of the decision that possession of the

acquired land had been given to third parties for the purposes of

starting an industry.

21. A reading of the decision in Tej Kaur's case (supra)

would reveal that the Hon'ble Supreme Court had not quashed

the proceedings, not because the owners had failed to

demonstrate the prejudice resulting from the denial of an

opportunity of a personal hearing, but because of the

Hon'ble Supreme Court took the view that the appellants therein

did not have a genuine grievance and that the writ petition had

been filed long after the declaration under Section 6 of the Land

Acquisition Act 1894 was issued, the Court declined to grant

relief. Thus, the decision cannot therefore be an authority for the

proposition that violation of the requirements of Section 5A is

inconsequential.

22. The contention urged by Shri Sanjay Poddar, learned

counsel for the respondents that the entire acquisition was for

laying a road and that objections similar to the ones filed by the

petitioner were considered and hence no prejudice was caused to

the petitioners; alternatively that grant of a hearing would be an

idle formality, is an argument which needs to be noted and

rejected for the reason the line of authorities which have held

that if the Court finds that grant of a hearing is an idle formality,

on account of non-grant of a hearing the administrative action

need not be quashed, are relatable to actions taken pursuant to

an exercise of administrative powers or where the statute does

not mandate grant of a hearing and right to be heard has been

interwoven as a due process of law based on the principles of

natural justice.

23. But, where the statute mandates grant of a hearing,

said right flows not from the principles of natural justice i.e. audi

said circumstances consistent view taken is that right of a

hearing is a statutory right and violation thereof is by itself a

prejudice.

24. In view of the decisions of the Hon'ble Supreme Court,

noted herein above emphasizing the significance of Section 5A,

we see no room to hold that the mandatory nature of Section 5A

can be diluted on the theory of idle formality.

25. That apart, in the instant case, the theory of idle

formality would not be applicable for the simple reason, the

objections filed by the office bearers of the petitioner raised

issues which were personal to the petitioner, namely, that after

obtaining sanction from the statutory authorities the petitioner

had erected a school building on the land in question and that a

secondary school, duly recognized, was being run from the said

building. It was further sought to be urged that right to education

for children being a fundamental right recognized by the

Constitution the same cannot be subservient to a public right to

have a road on the land in question. Surely, the petitioner has a

right to make good the said stand. Who knows, the competent

authority may be convinced.

26. We thus allow the writ petition and quash the

declaration dated 4.4.2007 issued under Section 6 of the Land

Acquisition Act 1894. But, we clarify that the same would relate

authorities under the Land Acquisition Act 1894 to proceed ahead

in accordance with law but after rectifying the taint which we

have noted herein above.

27. No costs.

PRADEEP NANDRAJOG, J.

SUNIL GAUR, J.

August 27, 2008
dk




WP(C) 2099/2008                                        page 14 of 14

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