Chander Bhan vs Union Of India And Others
2010 Latest Caselaw 79 Del

*         HIGH COURT OF DELHI : NEW DELHI

+         Writ Petition (Civil) No.5855 of 2001

                      Judgment reserved on: December 16, 2009

%                     Judgment delivered on: January 11, 2010

Chander Bhan
S/o Shri Chhotey Lal
R/o Village Dhul Siras
New Delhi                                       ...Petitioner
                     Through Mr. Anand Yadav, Advocate

                      Versus

1.   Union of India
     (through Secretary)
     Ministry of Urban Development
     Nirman Bhawan, New Delhi

2.   Lt. Governor
     NCT of Delhi
     Raj Niwas, Delhi

3.   Government of N.C.T. of Delhi
     Through Secretary
     Land & Building Department
     Vikas Bhawan, New Delhi

4.   Delhi Development Authority
     Through Secretary
     Vikas Sadan, INA Colony
     New Delhi

5.   Land Acquisition Collector
     District South West
     Kapashera, New Delhi                           ...Respondents
                     Through Mr. Sanjay Poddar, Advocate
                                for Respondent No.5

WP (C) No.5855/2001                                         Page 1 of 16
 Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE MUKTA GUPTA

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

2. To be referred to Reporter or not?                              Yes

3. Whether the judgment should be reported                         Yes
   in the Digest?

MADAN B. LOKUR, J.

The challenge in this writ petition is to notification No.F-

10(30)/96/L&D/L.A/13417 dated 13th December, 2000 issued under

Section 4 of the Land Acquisition Act, 1894 (for short the Act) in

respect of the land owned by the Petitioner comprising of Khasra

No.55/5 (4-11) situated in Village Dhul Siras, New Delhi.

2. In terms of Section 4 of the Act, the notification was

published in the Official Gazette on 13th December, 2000 and in two

newspapers circulated in the locality on 21st December, 2000. The

Petitioner has annexed with the writ petition a photocopy of the Official

Gazette and the publication made in the Hindustan Times of 21 st

December, 2000. A perusal of the Official Gazette shows that the

notification was issued in respect of the land of the Petitioner, that is,

Khasra No. 55/5 (4-11). However, the newspaper publication shows that

the notification was issued, inter alia, in respect of land bearing Khasra

No.55/4 (4-11). In other words, according to the Petitioner, as per the

newspaper publication, his land being Khasra No.55/5 (4-11) was not

notified under Section 4 of the Act. The Petitioner seeks to take

advantage of this discrepancy between the publication in the Official

Gazette and the publication in the newspaper.

3. At this stage, it may be mentioned that both the Official

Gazette and the newspaper publication state that a map showing the

boundaries of the land covered by the notification is available for

inspection in the office of the Land Acquisition Collector (South/West),

Delhi. There is no averment made by the Petitioner that the map did not

include his land, that is, Khasra No.55/5 (4-11).

4. Based on the discrepancy in the description of the notified

land, it is submitted by learned counsel for the Petitioner (relying on the

newspaper publication) that a valid notification, as required by Section 4

of the Act, was not issued in respect of his land bearing Khasra No.55/5

(4-11) thereby vitiating the acquisition proceedings. Section 4 of the

Act reads as follows:-

"4. Publication of preliminary notification and powers of officers thereupon.-

(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification).

(2) xxx xxx xxx"

5. In support of his contention, learned counsel for the

Petitioner relied upon a few judgments which we propose to deal with a

little later.

6. On the other hand, learned counsel for the Respondents

raised only one contention, namely, that no prejudice was caused to the

Petitioner due to the typographical error in the publication in the

Hindustan Times newspaper. It is submitted that the Petitioner filed

objections under Section 5A of the Act against the proposed acquisition

of his land. The Petitioner appeared and was heard at the time of

making the Award and so a mere typographical error in the description

of the land did not prejudice him and was not good enough reason to

vitiate the acquisition process.

7. Learned counsel for the Petitioner sought to establish two

propositions: first, that the provisions of Section 4(1) of the Act were

mandatory; second, if the mandatory provisions were not complied with,

then the acquisition process was vitiated.

8. Learned counsel for the Petitioner drew our attention to

Rameshwar Saran & Ors. v. State of U.P. & Ors., 1988 All.L.J. 559.

In paragraph 10 and 20 of the Report, it was held by the Allahabad High

Court that the requirement of Section 4(1) of the Act is mandatory and

that there has to be strict compliance with the provisions thereof.

Failure to comply with the mandatory requirements would vitiate the

acquisition proceedings. Unless all the three modes of publication

prescribed in Section 4(1) of the Act are resorted to, there could be no

notification under Section 6 of the Act.

9. In Prem Lata Devi v. State of Bihar, 1999 (1) LACC 335 the

Patna High Court held in paragraph 20 of the Report that the provisions

of Section 4(1) of the Act are mandatory. Therefore, it was held that the

failure of the authorities to publish the notification under Section 4(1) of

the Act in two newspapers had rendered the acquisition proceedings

invalid and liable to be quashed. The theory of "prejudice" was noticed

in paragraph 18 of the Report but not considered.

10. Finally, reliance was placed on Kunwar Pal Singh (dead) by

LRs v. State of U.P. & Ors., 2007 (5) SCALE 122 which was a case

dealing with publication of a declaration under Section 6 of the Act.

The Supreme Court observed in paragraph 16 of the Report that there is

no option with anyone to give up or waive any mode of publication and

all prescribed modes have to be strictly resorted to. The Supreme Court

held that the principle is well settled that where any statutory provision

provides a particular manner for doing a particular act, then, that thing

or act must be done in accordance with the manner prescribed therefor

in the statute.

11. Having considered the decisions cited by learned counsel for

the Petitioner, we find that (i) there is no doubt that the provisions of

Section 4(1) of the Act relating to the publication of a notification are

mandatory, and (ii) failure to comply with the mandate of Section 4(1)

of the Act would vitiate the acquisition proceedings. The question

before us is this: Is this an absolute position in law or can some

exceptions be carved out?

12. It is important to note that none of the above cited decisions

deal with the theory of prejudice relied upon by learned counsel for the

Respondents.

13. There is no doubt that the Act is, in essence, an expropriatory

legislation and, as held in Devinder Singh and others v. State of Punjab

and others, AIR 2008 SC 261 (paragraph 41 of the Report) an

expropriatory legislation must be strictly construed. Notwithstanding

this, in Union of India v. Pramod Gupta (dead) by LRs, (2005) 12 SCC

1, the Supreme Court adverted to the "prejudice doctrine" in paragraph

119 of the Report but did not elaborate or elucidate the theory.

14. In Pratibha Nema & Ors. v. State of Madhya Pradesh &

Ors., (2003) 10 SCC 626, the Supreme Court dealt with the theory of

prejudice in paragraphs 37 and 38 of the Report in the context of alleged

vagueness in the description of the public purpose in a notification

issued under Section 4(1) of the Act. The Supreme Court observed that

the appellants therein did not point out how the alleged ambiguity or

vagueness in the notification had caused any prejudice or handicap in

the sense that they could not file effective objections to the proposed

acquisition. The Supreme Court noted that if there is no proof of

prejudice or if no prejudice is demonstrated or could be reasonably

inferred, it would be unjust and inappropriate to strike down a

notification issued under Section 4(1) of the Act on the basis of a

nebulous plea. The Supreme Court further observed that even assuming

there is some ambiguity, Constitutional Courts should not deal a "lethal

blow" to the entire acquisition proceedings based on a theoretical or

hypothetical grievance of the landowner. However, when a real and

substantial grievance is made out, the Court ought certainly to intervene

if there is prejudice and injustice caused to the aggrieved party.

15. Earlier, in State of Haryana & Anr. v. Raghubir Dayal,

(1995) 1 SCC 133, the Supreme Court held in paragraph 8 of the Report

that since the owner of the acquired land or a person having interest in

the land is entitled to raise objections under Section 5A of the Act,

unless there is "grave prejudice" caused in non-publication of the

substance of a declaration under Section 6(1) of the Act, the omission to

publish the substance of the declaration in the locality would not render

that declaration invalid.

16. There is no doubt that the decisions of the Supreme Court

referred to above have only limited situational application. However,

the fact of the matter is that the "theory of prejudice" has been

recognized and accepted by the Supreme Court in matters pertaining to

acquisition of land. The question that arises is this: Can the theory of

prejudice save the acquisition process in the present case and is there

any other exception to the mandate of Section 4(1) of the Act?

17. In our opinion, even though the provisions of Section 4(1) of

the Act with regard to publication of a notification are mandatory, two

exceptions can certainly be carved out in extremely limited areas, such

as in the case of a typographical error, which can be overlooked on the

facts and circumstances of a given case and in the case of a limited, as

distinguished from a general, waiver. In such a case, it may not be wise

to be too dogmatic or to stick to the precise letter of the law.

18. In State of Karnataka v. All India Manufacturers

Organisation, (2006) 4 SCC 683 the Supreme Court dealt with

vagueness in the purpose of the acquisition and observed that there was

no prejudice caused to the respondents due to the wording of the

notification. This is because they had (a) filed their objections to the

proposed acquisition and (b) the appellants heard them on the objections

filed.

19. Applying the theory propounded by the Supreme Court, it is

easily discernible in the facts of this case that no prejudice, let alone any

grave prejudice, was caused to the Petitioner due to the typographical

error in the newspaper publication. We say this in view of the following

facts:

(i) The Official Gazette correctly described the land proposed

to be acquired and there is no dispute about this.

(ii) As between a newspaper publication and the Official

Gazette, there can be no doubt that the contents of the Official Gazette

are more authentic.

(iii) In the present case, since the Official Gazette correctly

describes the land sought to be acquired, there can be no hesitation in

accepting the fact that the Petitioner was put to adequate notice with

regard to the proposed acquisition of his land.

(iv) There is nothing on record to suggest that the map

showing the boundaries of the land covered by the notification

(available for inspection in the office of the concerned Land Acquisition

Collector) did not depict the correct state of affairs. If the Petitioner had

any doubt about the proposed acquisition of his land due to the

discrepancy between the Official Gazette (published on 13 th December,

2000) and the newspaper (published later on 21st December, 2000) all

that he was expected to do as a reasonable man was to confirm from the

map available with the Land Acquisition Collector whether his land was

sought to be acquired or not. Presumably, he did so and that is why he

filed objections to the proposed acquisition.

20. In Principles of Statutory Interpretation (10 th edition, 2006)

waiver is accepted as an exception to the general rule of non-compliance

of mandatory requirements resulting in nullification of the act. (Page

368 and 369). Reference is made to the maxim quilibet potest

renuniare juri pro se introducto which means that every man is entitled

to renounce a right introduced in his favour. In Krishna Bahadur v.

Purna Theatre, (2004) 8 SCC 229 waiver of a statutory right by

conduct was accepted. Similarly, in Commissioner of Customs

Mumbai v. Virgo Steels Bombay, (2002) 4 SCC 316 it was held that a

statutory right of notice could be waived. However, this is permissible

only if no public interest is involved and the right waived is personal to

that person.

21. So far as the present case is concerned, the right of the

Petitioner was to receive a public notice of the proposed acquisition of

his land. He could waive this right since it pertained to him only. He

could not (nor could the general public) waive the general right to a

public notice. This right, which is personal to the Petitioner (since the

discrepancy was in the description of his land only) was clearly waived

by him in view of the following:

(i) The Petitioner admittedly filed two sets of objections

under Section 5A of the Act with regard to his land bearing Khasra

No.55/5 (4-11). The first set of objections was filed on 12 th January,

2001 and the second set on 30 th January, 2001. In the first set of

objections, he does not even draw attention to the discrepancy. It is

only in the second set that a "mention" is made of the erroneous

description of the Petitioner's land. However, no objection is raised in

this regard. There was no occasion for the Petitioner to file these

objections if his land was not covered by the notification issued under

Section 4(1) of the Act. The Petitioner acted as if he knew his land was

notified under Section 4(1) of the Act.

(ii) The Petitioner also participated in the hearing which led

to the passing of an Award in respect of his land. If the Petitioner had

any doubt about the proposed acquisition, he would not have

participated in the hearing.

22. All these findings lead us to the inescapable conclusion that

in so far as the present case is concerned, the Petitioner was fully

conscious of the fact that a notification was issued under Section 4(1) of

the Act in respect of his land bearing Khasra No.55/5 (4-11) and that the

typographical error in the newspaper publication did not prejudice him

in any manner whatsoever, and even if it did, he had waived his

statutory right of notice.

23. We are also of the opinion that if we do not take a pragmatic

and expedient view, we would eventually be dealing a "lethal blow" to

the acquisition proceedings, or at least a part of the proposed

acquisition. As noted above, the Supreme Court has cautioned against

this particularly in a case of a nebulous, theoretical or hypothetical

grievance. We, therefore, reject the first contention of learned counsel

by invoking the theory of prejudice and waiver by conduct.

24. We have also taken note of the fact that the Petitioner has

been unable to prove any prejudice caused to him or to demonstrate any

prejudice caused to him or indeed persuade us to reasonably infer that

any prejudice has been caused to him. On the contrary, the Petitioner

participated in the acquisition proceedings without any substantive

demurrer and approached this Court for relief only thereafter.

25. The second contention of learned counsel for the Petitioner is

that similarly placed land belonging to some other persons was released

by the Respondents although it was very much required for the same

public purpose for which the land of the Petitioner was acquired. In this

regard, learned counsel for the Petitioner placed reliance on Sube Singh

v. State of Haryana & Ors., (2001) 7 SCC 545. Reference was also

made to Hukam Chand v. Union of India, 1988 RLR (SC) 19.

26. In Sube Singh the State Government had classified built-up

properties into category A, B and C and taken a policy decision to

exclude category A properties from acquisition. The Supreme Court

came to the conclusion that there was no material placed before it to

show the basis of classification. The classification appeared arbitrary

and discriminatory, more so in view of the specific averments made by

the writ petitioners that considering the nature of their construction, it

could well be amalgamated with the planned acquisition. Even

otherwise, the decision of the Supreme Court is confined to the facts of

that case as mentioned in paragraph 11 of the Report wherein it was

noted that on the facts of the case, the decision of the State Government

was not based on a fair and reasonable consideration of the matter.

27. Hukam Chand pertained to allotment of land by the Gaon

Sabha to members of the scheduled castes belonging to economically

weaker sections of society. Instead of allotting the land to them, it was

sought to be acquired by the State Government. Under these

circumstances, the acquisition was quashed. We are unable to see the

relevance of this decision to the facts of the case before us.

28. On facts, even though no counter affidavit was filed by the

Respondents, we were explained by learned counsel, on the basis of the

maps of the area, that the only land released was that portion which fell

for use as a shamshan bhumi. It is not the case of the Petitioner that his

land falls for use as a shamshan bhumi. This being the position, we find

no merit in the second contention urged.

29. Consequently, we find no merit in the writ petition and it is

accordingly dismissed. No costs.

                                              MADAN B. LOKUR, J




January 11, 2010                              MUKTA GUPTA, J
ncg

Certified that the corrected copy of
the judgment has been transmitted
in the main Server.