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Supreme Court of India
Union Of India vs Gopaldas Bhagwan Das And Ors on 4 February, 2020Author: Rohinton Fali Nariman
Bench: Rohinton Fali Nariman, S. Ravindra Bhat, V. Ramasubramanian
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3636 OF 2016
UNION OF INDIA & ORS. Appellant(s)
VERSUS
GOPALDAS BHAGWAN DAS & ORS. Respondent(s)
J U D G M E N T
R. F. Nariman J.
This matter has a somewhat chequered history.
In 1943, Government of India requisitioned 4 acres and
34 gunthas of the land owned by one Rajabahadur Bhagwandas
Haridas, bearing Survey No. 120/2 (Part) of Village Malad,
Mumbai, in exercise of powers conferred under Rule 75A of
the Defence of India Rules, 1939. On 27.07.1949, the
Collector, Thane, de-requisitioned 2.68 acres in the Survey
No. 120 Part 2 out of the aforesaid 4 acres 34 gunthas.
Ultimately, despite the land having first being
requisitioned, a notification under Section 4(1) of the Land
Acquisition Act, 1894 (hereinafter referred to as ‘Act’),
was issued on 24.10.1975 acquiring the aforesaid extent of
8623 square meters. A declaration under Section 6 of the
Signature Not Verified
Digitally signed by
SUSHMA KUMARI
BAJAJ
Act was issued on 30.11.1978. According to the respondents
Date: 2020.02.15
13:04:44 IST
Reason:
herein, a Draft Award was passed under Section 11 of the Act
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CIVIL APPEAL NO. 3636 OF 2016
on 23.09.1986, against which references were made, both
under Section 18 and 30, of the Act. The respondents
confirmed that after symbolic possession was taken on
06.01.1987 by the State, such possession has remained with
the State till date.
In a proceeding that was filed, insofar as other lands
in Village Malad were concerned, covered by the same section
4 notification, this Court in Kulsum R. Nadiadwala v. State
of Maharashtra and Ors. (2012) 6 SCC 348, allowed an appeal
by the land owner. After stating in paragraph 2 that the
very same section 4 notification was issued in order that a
Central Ordinance Depot for the Union of India be made for
defence purposes, the judgment records that the beneficiary
of these lands, being the Central Government, was served,
but did not appear at the time of hearing of the appeal.
The appellant in Kulsum R. Nadiadwala’s case (supra) argued
several points before this Court, which were resisted by the
learned counsel appearing for the State of Maharashtra,
basically on the ground that the writ petition should have
been dismissed on the ground of delay and laches as was done
by the impugned High Court judgment. After setting out
Section 4 of the Act, this Court observed that the
requirement that the notification under Section 4 be
published in the Official Gazettee and the requirement that
the Acquiring Authority should publish public notices of the
substances of such notification in a convenient place or
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places in the locality in which the land proposed to be
acquired is situate, are cumulative conditions, both being
mandatory. The Court then held: –
“13. In the instant case, the respondents before the
High Court had filed their reply affidavit. They did
not dispute the contentions of the appellants that
they had not issued any public notices as required
under Section 4 of the Act. They only reiterated that
such notification was published in the Official
Gazette. Since the mandatory requirement as required
under Section 4(1) of the Act is not complied with by
the respondents, while acquiring the lands in
question, in our opinion, the entire acquisition
proceedings requires to be declared as null and void.
14. This Court in J&K Housing Board v. Kunwar Sanjay
Krishan Kaul has observed that all the formalities of
serving notice to the interested person, stipulated
under Section 4 of the Act, has to be mandatorily
complied with in the manner provided therein, even
though the interested persons have knowledge of the
acquisition proceedings. This Court further observed
thus:
“32. It is settled law that when any statutory
provision provides a particular manner for doing
a particular act, the said thing or act must be
done in accordance with the manner prescribed
therefor in the Act. Merely because the parties
concerned were aware of the acquisition
proceedings or served with individual notices
does not make the position alter when the
statute makes it very clear that all the
procedures/modes have to be strictly complied
with in the manner provided therein. Merely
because the landowners failed to submit their
objections within 15 days after the publication
of notification under Section 4(1) of the State
Act, the authorities cannot be permitted to
claim that it need not be strictly resorted to.”
15. In view of the conclusion that we have reached on
the first issue canvassed by the learned counsel for
the appellants, we do not think that other issues
that the learned counsel for the appellants has
raised and canvassed before us need to be answered.”
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It may only be mentioned that in Kulsum R.
Nadiadwala’s case (supra), the challenge was made by way of
a writ petition filed in 1987, as opposed to the present
challenge, which was made only in the year 2002.
Ms. Rekha Pandey, learned counsel appearing on behalf
of the appellant, has raised several points in support of
this appeal. First and foremost, she adverted to an order
of this Court dated 27.03.2018 by which a Division Bench of
this Court has referred this matter to a larger Bench of
three Judges. This order reads as follows:
“1. The land of the respondents was acquired vide
notification dated 24.10.1975 under Section 4 of the
Land Acquisition Act, 1894 (the Act). The said land
was earlier requisitioned in the years 1942 to 1945
for defence purpose. Award was made in the year 1986
and symbolic possession of the land was taken on
06.01.1987. Objections of the award were filed by the
respondents against the award. A reference under
Section 18 of the Act was made which was disposed of.
Thereafter, the writ petition was filed by the
respondents mainly on the ground that there was no
due publication of the notification under Section 4
of the Act which was a mandatory requirement.
2.The High Court upheld the plea of the respondents
relying upon judgment of this Court in “Kulsum R.
Nadiadwala Vs. State of Maharashtra” (2012) 6 SCC
348.
3.Learned counsel for the appellants submitted that
having regard to the fact that the land was already
being used for defence purpose since the year 1942 to
1945 and the notification under Section 4 issued on
24.10.1975 was challenged for the first time by the
writ petition filed on 24.06.2002, the High Court
should have dismissed the writ petition on the ground
of delay and laches as entertaining such petition
will seriously affect public interest. It was
submitted that view taken in the relied upon judgment
ignores the concept of laches.
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4.Learned counsel for the respondents submits that in
spite of delay and laches, this Court in the
aforesaid judgment quashed the acquisition.
5.We are of the view that delay and laches may be a
bar to challenge to the acquisition after 27 years.
In Tamil Nadu Housing Board, Chennaiversus M.
Meiyappan and ors (2010) 14 SCC 309 this Court held
that inland acquisition proceedings the Court should
not encourage stale litigation as it may hinder
projects of public importance. The contra view in
threeJudge Bench decision in Dayal Singh versus Union
of India (2003) 2SCC 593 was held to be in conflict
with the Constitution Bench judgment in Rabindranath
Bose versus Union of India (1970) 1 SCC 84 and three-
Judge Bench judgment in Printers (Mysore) Ltd. versus
M.A. Rasheed(2004) 4 SCC 460. The said judgment was
cited with approval in recent judgment of threeJudge
Bench in Indore Development authority versus
Shailendra (Dead) through Lrs. & Ors. (Civil Appeal
No.20982 of 2017 –pronounced on 8th February, 2018).
6.In view of above, the view taken by twoJudge Bench
in Kulsum R.Nadiadwala versus State of
Maharashtra(2012) 6 SCC 348 to the effect that delay
and laches have to be ignored is not free from doubt.
7.Thus, we are of the view that the matter needs to
be placed before a Bench of three Judges.
8.Accordingly, let the papers be placed before
Hon’ble the Chief Justice of India for appropriate
directions.”
Ms. Pandey, learned counsel, has argued before us that
as a matter of law, such a huge delay in filing a writ
petition against Section 4 notification cannot possibly be
countenanced. She has also argued that in Kulsum R.
Nadiadwala’s case (supra), really speaking, the delay is
only of one year, as the Award in this case was issued only
in the year 1986, and the writ petition filed in that case
was of 1987. In the present case, the writ petition, as has
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been stated earlier, was filed only in 2002. Another
important point of difference, according to the learned
counsel is that notice was personally served on the
respondents in this case, which is not the case in Kulsum R.
Nadiadwala’s case (supra). She also raised the point that
was raised in the special leave petition filed by the Union
of India which is that Kulsum R. Nadiadwala’s case (supra)
is “per incuriam” inasmuch as it decided a point which arose
out of the Amendment Act of 1984, when the Section 4
notification was only of 1975, the 1984 Amendment Act not
being retrospective. She further went on to state that, in
any case, the Constitution Bench is taking up, as one of the
pleas before it in Indore Development Authority v. Manohar
Lal and Others Etc. (SLP (C)Nos. 9036-9038 of 2016) whether
delay would apply as a good ground for dismissing a writ
petition on the ground of laches insofar as challenges to
land acquisition proceedings are concerned, and that we
should await the judgment of the Constitution Bench before
proceeding with the judgment in this case. She kept harping
upon the fact that the acquisition in this case is for
important defence purposes and possession of this land has
been with the Union Government since 1942. She also stated
that Kulsum R. Nadiadwala’s judgment, if properly read, did
not amount to quashing of the entire section 4 notification,
particularly in view of the last paragraph of the judgment,
where the claim of the appellant was restricted only to 50
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CIVIL APPEAL NO. 3636 OF 2016
per cent of the land in question, the direction being that
the respondents shall hand over 50 per cent of the vacant
possession of the said land to the appellant forthwith.
As against these submissions, Shri Shyam Divan,
learned senior counsel appearing on behalf of the
respondents, argued that that the section 4 notification in
both these cases being the same, and Kulsum R. Nadiadwala’s
case being a final judgment of this Court in which a review
petition and a curative petition have been dismissed, the
said judgment would apply on all fours to the facts of this
case. He pointed out that the question of delay, though
raised by the learned counsel who appeared on behalf of the
State, was not directly answered in Kulsum R. Nadiadwala’s
case inasmuch as, according to the Division Bench of this
Court in Kulsum R. Nadiadwala’s case, a mandatory condition
of a section 4 notification not being adhered to, would
amount to there being no acquisition at all in the eye of
law. On this ground, he defended the impugned judgment
passed by the Bombay High Court.
Though this Court has, by its order dated 27.03.2018,
referred this case to a larger Bench in view of the decision
in Kulsum R. Nadiadwala’s case that delay and laches have to
be ignored, we are of the view that on the facts of this
case, we need not answer this question. This is for the
reason that the section 4 notification that was struck down
in Kulsum R. Nadiadwala’s case is the very notification in
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the facts of this case. We may also note that in paragraph
13 of the Kulsum R. Nadiadwala’s case set out hereinabove,
this Court quashed the entire acquisition proceedings
stating that they be declared as null and void. We are
unable to agree with Ms.Pandey’s contention that the Section
4 notification not only deals with various other lands in
Village Malad but also deals with a land in a different
village altogether viz., Village Wadhawan, and that this
Court’s judgment did not go to the extent of declaring the
acquisition bad so far as village Wadhawan is concerned. So
far as village Malad is concerned, where the land in Kulsum
R. Nadiadwala’s case was land that was adjacent to the
present land, the very section 4 notification has been
struck down and declared null and void, and this being the
case, it would not be in the interest of justice to allow
the present appeal in favour of the Union of India, as this
would amount to a discrimination between two persons who are
otherwise similarly placed.
Adverting to some of the other submissions made by
Ms.Pandey, first and foremost, in Kulsum R. Nadiadwala’s
case, the High Court dismissed the writ petition filed
therein on the ground of there being a 12 years delay in
filing the writ petition, and not on the ground that there
was a one year delay as the Award in this case was passed
only in 1986. Secondly, the factum of notices actually
being served in this case, as opposed to notices not being
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CIVIL APPEAL NO. 3636 OF 2016
individually served in Kulsum R. Nadiadwala’s case, apart
from making no difference to mandatory conditions that have
to be followed, as held in Kulsum R. Nadiadwala, has been
repelled by the judgment under appeal as follows:
“11. Nevertheless, we are dealing with the
contentions raised by the First Respondent. Perusal
of the Writ Petition and in particular Clause (h) of
Paragraph 4 thereof shows that a specific contention
has been raised by the Petitioners that neither the
Petitioners nor their predecessors were served with
any notice and were not offered any opportunity of
raising objections to the Notification under Sub-
section (1) of Section 4 of the said Act.
……………………………………………………………………………………………………………………..
……………………………………………………………………………………………………………………….
Affidavit of Shri Manoj Shankarrao Gohad, the
Special Land Acquisition Officer (4) is completely
silent as far as this factual and legal challenge in
this Petition is concerned.
………………………………………………………………………………………………………………………….
………………………………………………………………………………………………………………………….”
Insofar as the “per incuriam” point is concerned, this
can be disposed of by stating that even though newspaper
publication of the section 4 notification came in by
amendment for the first time in 1984, the requirement of
public notice where the land is situate in addition to
publication in the Official Gazette, was always there from
the inception. Kulsum R. Nadiadwala’s case did not deal
with newspaper publication at all. It only dealt with the
requirement of publication in the Official Gazette and
public notices of the substance of the notification being
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given in the locality in which the lands are acquired, both
of which were held to be cumulative and mandatory
requirements of section 4.
So far as the Indore Development Authority’s case
(supra) is concerned, the Constitution Bench is seized of
several questions, all of which pertain to the construction
of section 24 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013.
This being the case, and regard being had to what we
have stated hereinabove, it is wholly unnecessary for us to
adjourn this case in order to await the judgment of the
Constitution Bench in this case.
Given the fact that this is a Defence project in which
possession has been with the Union since 1942, the same
facts would obtain as in Kulsum R. Nadiadwala’s case in
which relief has been granted to Kulsum R. Nadiadwala. This
case, therefore, cannot lead to a different conclusion on
similar facts.
As to the argument that no declaration that the entire
section 4 notification is quashed inasmuch as the claim of
the appellants in Kulsum R. Nadiadwala’s case was restricted
only to 50 per cent of the lands in question, it is
important to make a distinction between a declaration of law
which would bind other future cases under Article 141 of the
Constitution of India and an order made in the facts of the
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CIVIL APPEAL NO. 3636 OF 2016
case which may equally be made to do substantial justice on
the facts of a given case, sometimes under Article 142.
On a reading of paragraph 16 of Kulsum R. Nadiadwala’s
judgment, it is important to note that though the
appellant’s claim was restricted to only 50 per cent of the
land in question, so far as the other 50 per cent is
concerned, the judgment itself makes a reference to the fact
that the appellants are legal heirs of one deceased Ismail
Nadiadwala and that there was another claimant whose name
was Ibrahim Nadiadwala to whom, presumably, 50 per cent of
the property went. Since only Ismail Nadiadwala’s heirs
were prosecuting the appeal, this direction appears to have
been made.
This being the case, we dismiss the appeal of the
Union.
………………………………………………………., J.
[ ROHINTON FALI NARIMAN ]
………………………………………………………., J.
[ S. RAVINDRA BHAT ]
………………………………………………………., J.
[ V. RAMASUBRAMANIAN ]
New Delhi;
February 04, 2020.
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