Mrs. Bhupinder Kaur Kler vs U.O.I. & Ors.
2011 Latest Caselaw 5826 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 RESERVED ON: 16.09.2011
                                               PRONOUNCED ON: 30.11.2011

+             REV. PET. 17/2005, C.M. NO. 1191/2005
                        IN W.P. (C) 1055/1986
MRS. BHUPINDER KAUR KLER                                        ..... Petitioner

             Through: Sh. Kirti Uppal, Sr. Advocate with Sh. Badar
             Mahmood, Advocate.

                                      versus

U.O.I. & ORS.                                                   ..... Respondents

Through: Sh. Sanjay Poddar, Sr. Advocate with Sh. Sanjay Kumar Pathak and Sh. Mohitrao Jadhav, Advocate.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE SIDDHARTH MRIDUL

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

2.    To be referred to Reporter or not?               YES

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


MR. JUSTICE S.RAVINDRA BHAT
%

1. The review petitioner in these proceedings has sought for recall of the order dated 14.12.2004, by which petition No. 1228/86 was dismissed.

REV. PET. 17/2005, C.M. APPL. 1191/2005 IN W.P. (C) 1055/1986 Page 1

2. The order dismissing the writ petition reads as follows:

"XXXXXX XXXXXX XXXXXX

Mr. Vashisht, learned counsel appearing for the petitioner submits that an application for amendment of the writ petition has been filed for urging an additional ground on the question of non-consideration of the objections purportedly filed by the petitioner under Section 5A of the Land Acquisition Act, 1894. Relying on the decision of this Court dated 1 st June 2001, Hari Ram Kakkar vs. Union of India & Ors., learned counsel submits that the amendment prayed for could be permitted at any stage of the proceedings in order to do complete justice to the parties.

The application, stated to have been filed last evening is not available on record. In any case, we are of the view that an application for amendment of a writ petition filed in the year 1986, at this juncture is highly belated even after the decision of this Court in Hari Ram Kakkar's case (supra) and therefore, cannot be permitted. The application is closed accordingly.

In so far as the main petition is concerned, we find that the issue raised in the petition with regard to validity of the Declaration issued under Section 6 of the Land Acquisition Act, 1894 stands concluded against the petitioner by the decision of the Apex Court in Abhey Ram & Others v. Union of India & Others (1997) 5 SCC 421 (which approved the Full Bench decision of this Court in B.R. Gupta's case AIR 1987 Delhi 239 on the issue that the Declaration under Section 6 was not beyond time) and Delhi Administration v. Gurdip Singh Uban & Others (1997) 7 SCC 44, wherein their Lordships were pleased to observe that those who had not filed objections under Section 5A of the said Act could not be allowed to contend that Section 5A enquiry was bad, or that Section 6 Declaration must be struck down on the ground of limitation and that Section 4 Notification would lapse on that score.

REV. PET. 17/2005, C.M. APPL. 1191/2005 IN W.P. (C) 1055/1986 Page 2 Admittedly, in the present case, no objections had been filed by the petitioner under Section 5A of the Act.

The Writ petition is dismissed accordingly.

XXXXXX XXXXXX XXXXXX"

3. The writ petitioner had approached this Court under Article 226, questioning the notification dated 25.11.1980 published under Section 4 of the Land Acquisition Act and the declaration issued on 27.05.1985.

4. The review petitioner's principal contention in this review proceeding is that in fact an objection under Section 5-A of the Land Acquisition Act had been filed, in respect of the suit land. This aspect, it is claimed, was not mentioned by inadvertence. Learned senior counsel, therefore, submitted that the non-consideration of the petitioner's objection, which according to him, is a matter of record, vitiated the acquisition in view of the position of this Court in the case of Balak Ram Gupta v. Union of India, (37) 1989 DLT

150.

5. The review petitioner contends that though inadvertent, mention of Section 5A of the Land Acquisition Act was pertinent to a decision in this case because the judgment of the Court in Balak Ram Gupta had held that the acquisition proceeding itself was void for non-compliance with the proper procedure. It was argued that the petitioner's omission mention the objections under Section 5A were on account of the circumstance that her predecessor-in-interest had not adverted to it. It is submitted that this was sought to be urged before the Court in a review petition moved around the time the order sought to be reviewed was made, i.e., 14.12.2004. Learned

REV. PET. 17/2005, C.M. APPL. 1191/2005 IN W.P. (C) 1055/1986 Page 3 counsel urges that the Court committed an error in not permitting amendment and not granting an adjournment in that regard.

6. It is pointed out that the question as to the nature of hearing which the authority has to give to the land owner under Section 5A was decided after a divergence of judicial opinion between two Judges in the case of Chatro Devi v. Union of India (137) 2007 DLT 14. The Court ruling was that Section 5A contemplated a hearing to the land owner and a proper application of mind by the Land Acquisition Collector. The correctness of that view was carried in appeal and is pending decision before the Supreme Court. Having regard to these facts, the Court should review and recall its order dated 14.12.2004 and place the writ petition for hearing afresh.

7. Learned counsel for the respondent urges that in identical circumstances, the Division Bench of this Court in Narender Kumar v. Union of India & Ors. had, by its order dated 13.01.2006, rejected the review petition. The Court had there, considered similar circumstances, based on the judgment in Balak Ram's case and proceeded to reject the review petition where the review petitioner had omitted to mention that an objection under Section 5A had been preferred.

8. Learned counsel contended that the Division Bench in Narender Kumar (supra) held that a review petition could not be entertained merely on the ground that the original petition omitted reference to Section 5A on account of an inadvertence. Learned counsel urged that the decision in Narender Kumar (supra) was sought to be challenged in Special Leave Petition under Article 136 which was rejected on 12.05.2006. Even the

REV. PET. 17/2005, C.M. APPL. 1191/2005 IN W.P. (C) 1055/1986 Page 4 review petition was dismissed. In these circumstances, the present review petition being devoid of merit, ought to be rejected.

9. Learned counsel for the respondent also urged that after dismissal of the petition and the review petition by the Supreme Court in Narender Kumar (supra), a fresh writ petition was preferred on his behalf, i.e. W.P. 829/2007 where the question of non-consideration of objections under Section 5A was sought to be re-agitated. Another Division Bench of this Court (A.K. Sikri and Manmohan Singh, JJ), by its judgment dated 20.02.2009 dismissed that writ petition. Having regard to these submissions, argued learned counsel for the respondent, it would not be appropriate for this Court to entertain the review petition and recall its previous order.

10. This Court notices that the main order dismissing the writ petition on 14.12.2004 had taken into consideration the absence of any challenge to the acquisition on the ground that the objections under Section 5A had not been preferred. As stated earlier, the notification under Section 4 was published on 25.11.1980; the declaration under Section 6 was made on 07.06.1985. It was after the declaration was made that the Writ Petition 1055/1986 was filed. The pleadings in the writ petition were bereft of any averment about the challenge to the acquisition on the ground of violation of Section 5A. This fact is apart from the fact that the writ petition itself was prima facie belated, having been preferred six years after the publication of the notification. Furthermore, the subsequent materials made available on the record in the form of pleadings to the Review petition clarify that the writ petitioner was not even the owner of the land in question as on the date when the Section 4 notification was made. This appears on a prima facie reading

REV. PET. 17/2005, C.M. APPL. 1191/2005 IN W.P. (C) 1055/1986 Page 5 of para 4 of the review petition. The original writ petition clearly states as follows:

"XXXXXX XXXXXX XXXXXX Though some land owners within the revenue estate of village, wherein the land of the petitioner is situated, filed objections under Section 5-A of the Act, the petitioner did not choose to file the said objections XXXXXX XXXXXX XXXXXX"

11. The first hearing of the writ petition was on 12.05.1986; the Court had granted stay of dispossession then. The interim order was continued till disposal of the petition by the order dated 06.10.1986. The order sheet of the writ petition would disclose that on successive dates, i.e. 25.11.2004 and 02.12.2004, adjournments were sought, and granted readily, to ascertain whether the writ petition had to be pressed. On 14.12.2004, during the course of submissions, it was urged on behalf of the petitioner that the application for amendment - moved 18 years after the first date of hearing, and seeking to urge that in fact the writ petitioner had filed objections under Section 5A - was being moved. That amendment application, however, was not on the record. In these circumstances, the Court, following its previous orders in other judgments and in other cases where the writ petitioners did not base their challenge to the acquisition process on the ground of non- consideration of Section 5A, dismissed the writ petition.

12. This court notices that in Narender Kumar (supra) too, the original order in the original Writ Petition dated 25.11.2004 was based on the ground that concededly no objections had been filed by the writ petitioner. The review was based on the grounds identical to that sought to be made-out by

REV. PET. 17/2005, C.M. APPL. 1191/2005 IN W.P. (C) 1055/1986 Page 6 the present review petitioner, i.e. that in fact objections under Section 5A had been preferred. The Division Bench of this Court rejected the review petition on 13.01.2006 - the order that the Supreme Court refused to interfere with in exercise of its Special Leave jurisdiction and in fact review jurisdiction. The petitioner, i.e., Narender Kumar (supra), undaunted, preferred a fresh writ petition, stating that non-consideration of the question, i.e., the objections and the manner such objections were dealt with, was an aspect which the Court had to still rule upon. By a detailed judgment, another Division Bench of this Court dismissed the fresh writ petition. The judgment of the Division Bench in Narender Kumar (supra), the second Writ Petition (dated 20.02.2009) observed as follows:

"XXXXXX XXXXXX XXXXXX

18. Let us discuss them step by step. It is not in dispute that in the earlier writ petition filed by the petitioner, no specific averment was taken regarding filing of objections under Section 5A of the Act. It is also a matter of record that though this writ petition was filed in the year 1986, and remained pending till 25.11.2004, no application was filed for amending the writ and the petitioner did not even seek incorporation of plea that the petitioner had filed objection under Section 5A of the Act. When the writ petition came up for hearing on 25.11.2004, nobody appeared on behalf of the petitioner. The Court passed the order dismissing the writ petition on the basis of averments contained therein as the Court found that no plea qua under Section 5A of the Act was taken.

19. It is the endeavour of the petitioner to argue that even in his absence, duty was cast upon by the counsel for the LAC to bring to the notice of the Court about filing the objections under Section 5A of the Act inasmuch as on a previous occasion i.e. 25.11.2004, orders were passed directing the counsel for

REV. PET. 17/2005, C.M. APPL. 1191/2005 IN W.P. (C) 1055/1986 Page 7 the LAC to inform the Court whether or not the various petitioners had filed objections under Section 5A of the Act and this order passed in the batch of writ petition included the petition of the petitioner as well. However, we find that such a list was filed in the lead case, namely, Chatro Devi (supra). It so happened that the case of the petitioner came up for hearing on 25.11.2004 along with other petitions and in the batch of Chatro Devi cases in which list was filed after 25.11.2004. Moreover, in view of Gurdip Singh Uban and Abhey Ram cases, it was the duty of the petitioner to take up specific plea regarding filing of the objections under Section 5A of the Act by amendment of the writ petition or otherwise. As pointed out above, this was not done.

20. The petitioner filed the review petition seeking recall of the aforesaid order. Significantly, in the review petition preferred by him against orders dated 25.11.2004, specifically took up the plea of filing objections under Section 5A of the Act. Precisely on that basis he pleaded for review of the order dated 25.11.2004. Thus, the submission which is sought to be advanced now in this writ petition was taken in the review petition preferred by the petitioner. It was his misfortune that the said review petition was also dismissed. Special leave petition there against was filed again raising identical issues, which met the same fate. To his dismay, even review petition of the dismissal of the SLP was also rejected. These developments of dismissal of review petition against orders dated 25.11.2004 by this Court and thereafter affirmation of those orders of the Supreme Court have sealed the fate of the petitioner. The petitioner under these circumstances cannot cling to the orders dated 25.11.2004 and on that basis argued that those orders were passed on the basis of wrong facts and, therefore, per incurium...

XXXXXX XXXXXX XXXXXX"

REV. PET. 17/2005, C.M. APPL. 1191/2005 IN W.P. (C) 1055/1986 Page 8

13. The view taken by the Division Bench of this Court in Narender Kumar (supra) was on facts identical with those sought to be projected or agitated by the review petitioner. Narender Kumar even went to the extent of contending that this Court had not ruled upon the impact of Section 5A objections and the orders passed pursuant to it and, therefore, he was free to file a second writ petition inviting a judgment on that aspect. As noticed above, that writ petition was also rejected. The present writ petitioner in this Court's opinion, can fare no better since the only or principal ground urged is that in fact Section 5A objections had been preferred and that they had not been dealt with in accordance with law. Having once taken the view that this Court did in Narender Kumar (supra), i.e., that the omission to mention those facts in the pleadings constituted a fatal infirmity, which precluded the writ petitioner from agitating the same in review proceedings - or even subsequent writ proceedings, the same logic and considerations would apply in the present case too.

14. For the above reasons, the Review petition does not merit consideration. It is accordingly dismissed.

S. RAVINDRA BHAT (JUDGE)

SIDDHARTH MRIDUL (JUDGE) November 30, 2011

REV. PET. 17/2005, C.M. APPL. 1191/2005 IN W.P. (C) 1055/1986 Page 9