Sh. Muralidhar Chandrakant ... vs Union Of India & Ors.
2010 Latest Caselaw 3092 Del

                             REPORTABLE
*              IN THE HIGH COURT OF DELHI AT NEW DELHI
                         WP (C) No. 2352 OF 2002

       %                                    Judgment delivered on : July 5, 2010

SH. MURALIDHAR CHANDRAKANT BHANDARE                             . . . PETITIONER

                              THROUGH:              Mr. Ravinder Sethi, Sr. Advocate
                                                    with Mr. Rajiv Kumar Ghawana,
                                                    Ms. Manali Singhal, Ms. Ruchi
                                                    Sharma, Mr. Kshatrashal Raj,
                                                    Advocates.


                                     VERSUS
UNION OF INDIA & ORS.                                          . . .RESPONDENTS

                              THROUGH:              Mr. Sanjay Poddar, Advocate for
                                                    LAC
                                                    Ms. Sangeeta Chandra, Adv. for
                                                    DDA.

CORAM :-

       HON'BLE MR. JUSTICE A.K. SIKRI
       HON'BLE MS. JUSTICE REVA KHETRAPAL

       1.      Whether Reporters of Local newspapers may be allowed
               to see the Judgment?
       2.      To be referred to the Reporter or not?
       3.      Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J. (ORAL)

1. The petitioner has filed this writ petition under Article 226 of the Constitution

of India for issuance of order or directions thereby declaring Notification No. F.10

(30)/96/L&B/LA/13417 dated 13-12-2000 under Section 4 of the Land Acquisition

Act, 1894 (hereinafter referred to as „the Act‟) and Notification/Declaration

No.F.10(3)/9D6/L&B/LA/14062 dated 7-12-2001 under Section 6 of the Act as

violative of Article 14, 21 and 300-A of the Constitution of India. The subsequent

Notification dated 21st March, 2002 issued under Section 17 (1) of the Act in respect

of the petitioner‟s land is also challenged as unconstitutional, illegal and mala fide.

2. The petitioner is the owner of land and farm house built on the said land

which comprises Khasra Nos. 27/20/2(1-10), 28/24/2(0.11), 29/4/1 (1-4), 28/24/1

(4-5), 28/25/1 (3-2), 28/16 (4-12) (total 19 Bighas & 16 Biswas) situated in revenue

estate of village Pochanpur, District Delhi. According to the petitioner, he had

applied for sanction of the plans for construction of farm house on the said land which

was sanctioned vided letter no. 17/A/40/87 dated 30th June, 1987. After completion

of the construction of the farm house, the petitioner had applied for occupancy

certificate which was issued on 22nd October, 1993.

3. A Notification under Section 4 of the Act in respect of large number of villages

including village Pochanpur was issued on 13th December, 2000 wherein it was

proposed to acquire the areas mentioned in the said Notification and objections to the

proposed action were invited under Section 5 of the Act. The petitioner has

specifically averred in the petition that he filed the objections on 16th January, 2001.

However, neither opportunity of personal hearing was allowed to the petitioner nor

any reply was given by the respondents to the said objections. On the contrary,

without complying the aforesaid mandatory procedure, the respondents issued

declaration under Section 6 of the Act on 21st January, 2001 and thereafter

Notification under Section 17 (1) of the Act on 21st March, 2002 thereby acquiring the

land including that of the petitioner. At this stage, the petitioner approached this

Court and filed the aforesaid writ petition challenging the aforesaid

Notifications/declarations under Section 4/6/17 of the Act respectively. Though, the

Notifications are challenged on many grounds, it is not necessary to go into all these

contentions advanced in the writ petition. It is because of the reason that that the

respondents in their additional affidavit dated 1st June, 2010 have accepted the factual

position namely:-

(i) The petitioner had in fact submitted his objections under Section 5 of the Act which are on the record of the respondents.

(ii) The petitioner was not given any opportunity of being heard on the said objections.

4. It is trite law that when the objections are preferred by any land owner whose

land is sought to be required, personal hearing is to be afforded by the Competent

Authority under the Land Acquisition Act before final view is taken on those

objections. It is also an accepted position in law that if no such hearing is given, it

nullifies the entire action from the stage of declaration under Section 6 of the Act.

5. The submission of Mr. Poddar, in the light of aforesaid admitted position,

however, is that the land which comprises of so many villages including village

Pochanpur was sought to be acquired pursuant to the Notification under Section 4 of

the Act, and as many as 77 persons had filed their objections in respect of village

Pochanpur. It is pointed out that the then Land Acquisition Collector had accorded

hearing to the various objectors. After hearing those objectors, the LAC has

submitted his report to the Competent Authority alongwith the files containing the

objections in original. It is also the contention of Mr. Poddar that the objectors who

were given hearing had filed their objections on the same lines as that of the

petitioner and, therefore whatever objections the petitioner had, were taken into

consideration and dealt with by the LAC in his report. The LAC did not find favour

with those objections and had recommended the acquisition of the land in his report.

On this basis, Mr. Poddar argues that Lt. Governor being the Competent Authority

had gone into the details of said report in the light of the objections made by various

objectors and decided to acquire the land. In nutshell, his submission is that even if no

hearing is given to the petitioner, it did not cause prejudice to the petitioner when the

nature of objections made by the petitioner were duly considered by the LAC in his

report and these were also considered by the Competent Authority before taking the

final decision.

6. Mr. Sethi, learned Senior Counsel appearing on behalf of the petitioner

counters the aforesaid arguments of Mr. Poddar by submitting that merely because

hearing was given to other objectors would not meet the requirement of affording the

personal hearing to the petitioner as well, which is a mandatory requirement under

the law. By relying upon various judgments, as would be noted hereinafter, Mr. Sethi

argues that it is well settled principle of law that statutory requirement of Section 5 of

the Act is mandatory in nature and not just a formality and akin to a fundamental

right. His submission thus is that it was incumbent upon the Land Acquisition

Collector to afford personal hearing to the petitioner and by affording hearing to

other objectors, the respondents cannot argue that the requirement stands complied

with in the case of the petitioner as well. It is also submitted by Mr. Sethi that even

the contention of the respondents that the petitioner‟s objections were almost similar

as that of other petitioners is factually incorrect.

7. We have considered the rival contentions. As already pointed out above, in so

far as the case of the petitioner is concerned, the admitted position appearing on the

face of record is that the petitioner had preferred objections under Section 5 of the Act

but he was not afforded any personal hearing before the final decision was taken to

acquire his land alongwith the land of other land owners. Mr. Sethi is right in his

contention that statutory requirement of Section 5 of the Act is mandatory in nature

and not just a mere formality. It has been so held by the Supreme Court in number of

judgments. We may refer to one such judgments of the Supreme Court in the case of

Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chennai & Ors. (2005)

7 SCC 627 wherein the Supreme Court held as under:-

"8. The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non-compliance or substantial non-compliance of the provisions of Section 5-A of the Act cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-section (3) of Section 6 of the Act renders a declaration to be conclusive evidence. But when the decision making process itself is in question, the power of judicial review can he exercised by the court in the event the order impugned suffers from well-known principles, viz., illegality, irrationality and procedural impropriety.

Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner."

"9. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regard the public purpose as also suitability thereof must be preceded by application of mind as regard consideration of relevant factors and rejection of irrelevant ones. The State in its decision making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions, contained in Article 300A of the Constitution of India has been held to be akin to a fundamental right."

xxx xxx xxx

"19. Furthermore, the State is required to apply its mind not only on the objections filed by the owner of the land but also on the Report which is submitted by the Collector upon making other and further enquiries therefore as also the recommendations made by him in that behalf. The State Government may further inquire into the matter, if any case is made out therefore, for arriving at its own satisfaction that it is necessary to deprive a citizen of his right to property. It is in that situation production of records by the State is necessary."

xxx xxx xxx

"28....When a decision is required to be taken after giving an opportunity of hearing to a person who may suffer civil or evil consequences by reason thereof, the same would mean an effective hearing."

"29. The Act is an expropriatory legislation. This Court in State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors. (1966) 3SCR557 observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand and Ors. v. State of Rajasthan and (1967) 1SCR120 and CCE v. Orient Fabrics (P) Ltd. (2004) 1 SCC 597]."

8. The aforesaid principle was laid down even in earlier judgments and has been

repeatedly reiterated and followed by the Supreme Court in number of cases, some

of which are as under: -

               (i)        Shri Farid Ahmed Abdul Samad & Anr. Vs. The
                          Municipal Corporation of the City of Ahmedabad &
                          Anr. (1976) 3 SCC 719.

               (ii)       State of Punjab and Another Vs. Gurdial Singh and
                          Others (1980) 2 SCC 471

               (iii)      Om Prakash Vs. State of Uttar Pradesh, (1998) 6
                          SCC 1



                (iv)       Babu Ram & Anr. Vs. State of Haryana, (2009) 10
                          SCC 115

This Court in Chatro Devi Vs. Union of India & Ors. 137 (2007) DLT 14

made following pertinent observations:-

"There is in the light of the above pronouncements, no gainsaid that violation of Section 5A, which is mandatory in character, has the effect of vitiating any recommendation made by the Collector and consequent declaration made by the Government"

In R.D. Bhanot Vs. Union of India, 2009 (162) DLT 111, this Court again

held qua the aforesaid sentiments by specifically observing that utmost sanctity is to

be attached to Section 5-A because it provides for a valued right given to land owners

and if the provisions of Section 5-A of the Act are not strictly followed or there is any

procedural lapse in the inquiry conducted into the objections, that would vitiate the

acquisition of land. In the light of the aforesaid position contained in law, we proceed

to examine the contentions of Mr. Poddar.

9. What is sought to be argued is that such a hearing would have served no

purpose when similar hearings were afforded to other land owners who had filed their

similar objections. This argument is clearly misconceived. It cannot be disputed that

each and every land owner, whose land is sought to be acquired, has right to file the

objections under Section 5 of the Act. When such objections are filed, right accrues to

every such objector to plead his/her case when specifically afforded personal hearing

in the matter. Such a mandatory requirement cannot be satisfied by showing that

hearing was afforded to some objectors and that should bind others as well. If this

kind of contention is accepted, that would mean that even when land of hundred

persons is sought to be acquired, the procedure required stands satisfied after hearing

is afforded to one or two persons. The right to be heard is given to individuals and

these proceedings are not in representative capacity. Even if we presume that the

objections were of similar nature, that too, would not absolve the authorities from the

mandatory requirement of affording hearing to each and every person. Furthermore,

it is also possible that a particular person when given an opportunity may present his

case in a better and forceful manner. Be as it may, fate of one person cannot be

decided without hearing him by making a plea that other similarly situated persons

were heard.

12. In Nawabkhan Abbaskhan Vs. State of Gujarat, AIR 1974 SC 1471 the

Supreme Court in categorical terms laid down the rule that where the statute

prescribes giving of hearing, non-adhering thereto would be fatal. The relevant

observations from the said judgment are extracted below:-

"Where hearing is obligated by a statute which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional requirement and failure to comply with such a duty is fatal. May be that in ordinary legislation or at common law a Tribunal, having jurisdiction and failing to bear the parties, may commit an illegality which may render the proceedings voidable when a direct attack is made thereon by way of appeal, revision or review, but nullity is the consequence of unconstitutionality and so without going into the larger issue and its plural divisions, we may roundly conclude that the order of an administrative authority charged with the duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void and ab initio of no legal efficacy. The duty to hear manacles his jurisdictional exercise and any act is, in its inception, void except when the alternative is travesty of conditions laid down in regard to hearing............."

Though right to property is not a fundament right, it still remains a

constitutional right protected under Article 300A of the Constitution and, therefore,

the aforesaid observations are valid in the present context as well.

13. Another case which we can refer to is the judgment of Supreme Court in

Gokak Patel Volkart Ltd. Vs. Collector of Central Excise, Belgaum, AIR 1987 SC

1161. In that case, notice of show cause as per provisions of Section 11 A of the

Central Excise and Salt Act, 1944 was not issued, the Court quashed the demand as

violative of natural justice by observing as under:-

"No notice seems to have been issued in this case in regard to the period in question. Instead thereof an outright demand had been served. The provisions of S. 11A (1) and (2) make it clear that the statutory scheme is that in the situations covered by sub. S (1), a notice of show cause has to be issued and sub-s. (2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the amount has to be determined. The scheme is in consonance with the rules of natural justice. An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made before making the order thereof. Notice is thus a condition precedent to a demand under sub-s.(2). In the instant case, compliance with this statutory requirement has not been made, and, therefore, the demand is in contravention of the statutory provision. ..................."

In the reply affidavit filed by the petitioner to the aforesaid additional affidavit

on behalf of respondent no.3 in which respondent no.3 has accepted that petitioner had

filed the objections, under Section 5 of the Act, it is specifically averred that the

petitioner had made a request for personal hearing. When such a request was made, it

was incumbent upon the respondent to afford this hearing.

14. In view thereof, the arguments of Mr. Poddar that no prejudice is caused to the

petitioner have no merit at all. The very fact that the land of the petitioner is

acquired without giving him any hearing itself demonstrate that the petitioner is

prejudiced by the action of the respondents.

15. That apart, it is also specifically submitted by the petitioner that petitioner‟s

case was different on facts than other cases inasmuch as there was no other case in

Pochanpur where the farm house was constructed after obtaining the proper sanction

and even the occupancy certificate was issued to the petitioner on 22nd October, 1993.

16. We are, therefore, of the opinion that by not complying with the mandatory

requirement of affording the personal hearing to the petitioner, declaration under

Section 6 as well as Notification under Section 17 (1) of the Act are bad in law. The

rule is made absolute. We, therefore, allow the writ petition and set aside the

declaration dated 21st January, 2001 issued under Section 6 of the Act and Notification

dated 21.3.2002 passed under Section 17 (1) of the Act.

No order as to costs.

(A.K. SIKRI) JUDGE

(REVA KHETRAPAL) JUDGE JULY 5, 2010 skb