DELHI DEVELOPMENT AUTHORITY versus BHIM SAIN GOEL AND ORS. on 25 April 2022

SUPREME COURT REPORTS

[2022] 2 S.C.R.

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DELHI DEVELOPMENT AUTHORITY

v.

BHIM SAIN GOEL AND ORS.

(Civil Appeal No. 3151 of 2022)

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APRIL 25, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Land Acquisition Act, 1894: ss. 4, 6, 16 and 18 – Right toFair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 –s. 24(2) – NotificationCu/s 4 to acquire land of the respondent, followed by declaration u/s. 6 – Challenge to, by the respondent in a writ petition – HighCourt granted the stay and directed the parties to maintain the statusquo with regards to nature, title and possession of the land anddismissed thewrit petition – In appeal, this Court granted interimDstay – Meanwhile, Act of 2013 passed – Writ petition by respondentclaiming that the land acquisition proceedings under the Act of 1894stood lapsed as per the s.24(2) of the Act of 2013 – Allowed by theHigh Court as the award in the matter was made 5 years prior tothe commencement of the Act of 2013 and the compensation hadEnot been paid – Appeal before this Court – During the pendencythereof, the proceedings under the 1956 Act that land in questionneeded for public purpose – Held: Respondents cannot take shelteru/s. 24(2) of the Act of 2013 – Barring 81 days, the appellant-acquiring authority was prevented for taking possession of the landson account of interim stay obtained by the respondents – If not forFthe stay, the lands would have been taken and the land would havestood vested with the Government under the 1894 Act – Furthermore,Government cannot acquire the the land already vested in it andthe Government cannot be compelled to shell out public funds toacquire land which already belongs to it – The fact that proceedingsGunder the 1956 Act reached the stage of declaration cannot givethe respondents a right to claim the fruits of the said proceedings,when the land already would stand vested under the 1894 Act andthere cannot be vesting twice over – Thus, the judgment of the HighCourt set aside and the land stood vested to the Government –However, the respondents granted an opportunity to file an H

application u/s 18 of the 1894 Act seeking reference and claimingenhanced compensation – National Highways Act, 1956 –Subsequent events.

Allowing the appeal, the Court

HELD: 1.1 Notification came to be issued under Section 4of the Land Acquisition Act, 1894 on 21.03.2003. This was followedup by declaration under Section 6 on 18.03.2004 which wasfollowed up by Award passed on 22.08.2005. An interim orderwas passed undoubtedly which effectively prevented the appellantfrom taking possession of the lands in question. Though the writpetition came to be dismissed on 20.08.2007, the respondentscarried the lis to this Court and it is again not in dispute that theinterim order continued to haunt the appellants as it preventedthe appellants from taking possession of the lands which it couldotherwise have taken. With the enactment of the Right to FairCompensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 with effect from01.01.2014, even when the civil appeal was pending, therespondents filed a fresh round of litigation in the form of a writpetition. Therein the claim was that the earlier Award has lapsedon the basis of Section 24(2) of the 2013 Act. This argument hasfound favour with the High Court in the impugned judgment. It isthe case of the appellant that except for 81 days, there was aninterim order prevailing, which effectively prevented the appellantfrom taking possession of the lands at the instance of therespondents. [Para 10][1173-C-F]

1.2 There cannot be any doubt that the respondents cannottake shelter under Section 24(2) of the 2013 Act. This is for thesimple reason that it is by their conduct in approaching the Courtsand obtaining interim orders that the appellant was preventedfrom taking possession of the lands. This is indeed one such casewhere the respondents have launched litigation, obtained ordersand it has clearly prevented the appellant from taking possessionand therefore, the impugned judgment of the High Court wouldhave to be set aside. [Para 12][1176-A-C]

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A1.3 It is true that a notification has been issued under Section3A of the 1956 Act also. It is equally true that acting upon thenotification after calling for the objections, declaration has beenmade under Section 3D of the 1956 Act. The scheme of the 1956Act essentially consists of issuance of notification under Section3A corresponding to Section 4 of the 1894 Act, followed up by anBinquiry ordinarily and culminating in a declaration under Section3D. It is undoubtedly true that the legal effect of the declarationunder Section 3D of the 1956 Act is that the property would vestthereupon. [Para 13][1176-D-F]

1.4 This Court is presented with a situation where, on theCone hand, the vesting has already taken place under Section 16of the 1894 Act. No doubt, under Section 16, possession is to betaken on passing of the Award. But here, it is only solely on accountof the conduct of the respondents in filing a writ petition andorders being passed by courts that possession could not be taken.DOn the other hand, during the pendency of the challenge againstthe impugned judgment, undoubtedly, proceedings have beenlaunched under the 1956 Act. Here, the land in question wasneeded for a public purpose-construction of the road. It isapparently, no doubt, during the pendency of the litigation beforethis Court that proceedings under Section 3A have been taken,Efollowed up by declaration under Section 3D. [Para 14][1176-F-H]

1.5 On the one hand, it is a case where the so-calledsubsequent developments had taken place during the pendencyof the appeal before this Court. On the other hand, the authorityobviously realizing the need to acquire the land for public purposeFthat is for construction of road resorted to the provisions of the1956 Act. The principle that the Government cannot acquire theland which has already vested in it must be borne in mind. Theother aspect must be borne in mind is realizing the fact that thelands in question are the subject matter of the appeal and what isGmore, they would stand vested in terms of the Constitution Benchjudgment of this Court the lands have been excluded when thefinal Award was passed under the 1956 Act. The respondents do not have a case that they have laid any challenge to the exclusionof their lands in the final Award. Whatever that may be, the factremains that all these developments took place during thependency of the appeal. [Para 16][1178-G-H; 1179-A-B]

1.6 When the Court finally decides the lis, it is undoubtedly,open, particularly this Court, having powers as it has under Article142, to do complete justice between the parties and the counselfor the respondents is seeking to invoke the said jurisdiction.[Para 17][1179-B-C]

1.7 If it is the principle of estoppel which can be invoked asit would appear from the line of argument taken by the counselfor the respondents, it is not tenable. Estoppel flows from equity.[Para 18][1179-C-D]

1.8 It could be contended that it may not be fair to allow theappellant to proceed under the 1956 Act and for the proceedingsto culminate in the vesting of the property under Section 3D ofthe 1956 Act and having elected to take proceedings under the1956 Act apparently on the basis of the impugned judgmentnamely that the proceeding under the 1894 Act stood lapsed, theauthorities cannot be permitted to resile from their action. It wouldbe wholly inequitable on facts to deprive the appellant of itsrights when it is finally adjudicated in its favour in the facts ofthis case. It is also a case where the appellant has promptlyapproached this Court against the impugned judgment.Furthermore, in the facts the balancing of equity must be workedout in favour of the appellant. In other words, the mere fact thatproceedings were taken during the pendency of the case and ithad reached the stage of declaration under Section 3D of the1956 Act cannot suffice to cloth the respondents with a right toclaim the fruits of the said proceedings, when on the final disposalof the appeal it was found that in law as declared by this Courtin the Constitution Bench, the land already would stand vestedunder the 1894 Act and as already noticed there cannot be vestingtwice over. [Para 20][1180-C-F]

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A1.9 Having regard to the fact that barring 81 days therespondents succeed on the strength of interim order passedfrom preventing the appellant from taking possession of the landsmust be the crucial aspect. [Para 21][1180-F-G]

1.10 The public authority which had set the law in motionBunder the earlier regime cannot be put to a loss when at the endof the day or on the day of reckoning it is found that they mustsucceed in law. The appellant is fully justified in contending thatbut for the orders passed by the High Court and this Court, thepossession would have been taken, and the land would havevested under the law. This Court must proceed on the basis thatCbut for the interim orders passed which cannot survive the finaldisposal of the cases, the land would have stood vested with theGovernment under the earlier regime. The subsequent vestingwhich is attributed to Section 3D of the 1956 Act, must pale intoinsignificance and cannot estop the appellant from contendingDthat in law the land would vest under the notification/ award issuedunder the 1894 Act.There is no right for the respondents to pleadequity for they have by their acts effectively prevented the publicauthority from enjoying the fruits of law by which, in the exerciseof power embedded in the 1894 Act, the land is vested with theappellant, and the land is one which is needed for an importantEpublic project like construction of the road for that matter.It wouldbe completely antithetical to public interest were the Governmentbe compelled to shell out public funds under the 2013 Act toacquire land which already belongs to it. This Court cannot beoblivious to the said sublime principle as well.The restitutionaryFprinciple must be borne in mind. Realizing that the lands arealready vested, the lands are already excluded under the finalaward. The inevitable outcome is that the appellant must succeed.The impugned judgment is set aside. [Para 22-25][1180-G-H;1181-A-E]

G1.11 However, in the facts of this case and in the interest ofjustice, it is fit to direct that if the respondents have not filed anyapplication under Section 18 of the 1894 Act seeking referenceand claiming enhanced compensation pursuant to the Award dated22.08.2005, the respondents should be granted an opportunity H

to make an application under Section 18 and the matter beadjudicated under the earlier Act. The impugned judgment cameto be passed based on the law as it was laid down by this Court.Accordingly, it is directed that in case, the respondents havealready not filed an application within the meaning of section 18of the 1894 Act, they are permitted to file application under Section18 of the 1894 Act within the stipulated period. In case such anapplication is made, it would be dealt with in accordance with lawas it stood under the 1894 Act. The application would not bedismissed on the ground of delay. This order is passed in thepeculiar facts of this case and taking note of the fact that it is withthe judgment rendered that this Court is giving imprimatur tothe Award dated 22.08.2005 under the 1894 Act. [Para 26][1181-F-H]

Indore Development Authority v. Manoharlal and Others(2020) 8 SCC 129 : [2020] 3 SCR 1 – followed.

Jaipur Development Authority v. Mahesh Sharma andAnother (2010) 9 SCC 782 : [2010] 11 SCR 1002 –referred to.

SPENCER BOWER: RELIANCE-BASED ESTOPPEL5th Edition – referred to.

Case Law Reference

[2020] 3 SCR 1followedPara 12, 16, 20, 22, 24[2010] 11 SCR 1002referred toPara 15

CIVIL APPELLATE JURISDICTION: Civil Appeal No.3151 of2022.

From the Judgment and Order dated 02.02.2016 of the High Courtof Delhi at New Delhi in W.P. (C) No.3209 of 2015.

Ms. Aishwarya Bhati, ASG, Sanjay Poddar, Sr. Adv., Vishnu B.Saharya, Viresh B. Saharya, M/s Saharya & Co., Akshay Dhatwalia,Ms. Kumud Nijhawan, Ashwani Kumar, Pranab Kumar Mullick, SomaMullick, Biswaranjan Kumar, Sebat Kumar Deuria, Siddharth Singla,Praveen Swarup, Shivam Goel, Anil Kumar Goel, Pratish Goel, RamyaGoel, Ms. Payal Swarup, Manvendra Singh, Ms. Shivika Mehra, Ms.BLN Shivani, Aman Sharma, Ms. Priyanka Das, Abhishek Sarkar, Ms.

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ANoor Rampal, Raghvendra S. Srivatsa, Atul Kumar, Ms. Sweety Singh,Rahul Pandey, Rajiv Ranjan, Advs. for the appearing parties.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

B(1) Delay condoned.

(2) Applications for condonation of delay in filing substitution, settingaside abatement and substitution are allowed.

Mr. Pranab Kumar Mullick, learned counsel, appears for the legalrepresentatives of deceased respondents.

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(3) Leave granted.

(4) A notification dated 21.03.2003 was issued under Section 4 ofthe Land Acquisition Act, 1894 (hereinafter referred to as ‘1894 Act’)purporting to acquire lands belonging to the respondents. This was dulyfollowed up by declaration under Section 6 of the 1894 Act on 18.03.2004.DOn 22.08.2005, an Award was passed in the matter. Writ Petition No.21639/2005 came to be filed before the High Court laying challenge tothe declaration under Section 6. What is more pertinent is that, the HighCourt directed on 18.11.2005 that status quo with regard to nature, titleand possession of the land in question be maintained. It is the case of theEappellant that the authority could not take possession of the land as aresult of the interim order. The writ petition came to be dismissed.However, on the application of the respondents, by order dated18.09.2007, the High Court extended the stay order by a week. Therespondents approached this Court by filing SLP (C)No. 17504-08/2007.This was later converted into Civil Appeal No. 4116-4120/2009. Again,Fwhat is apposite to note is that an interim order of stay was passed. Inthe meantime, the Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 (hereinafterreferred to as ‘2013 Act’) came into force with effect from 01.01.2014.In the meantime, the respondents filed Writ Petition No. 3209/2015. ThisGwrit petition was premised on the lapsing of the proceedings under the1894 Act, based on Section 24(2) of the 2013 Act. The writ petitioncame to be allowed by the High Court on 02.02.2016. Thereafter, therespondents withdrew Civil Appeal No. 4116-4120/2009. It is this judgmentof the High Court dated 02.02.2016 which is the subject matter of thepresent appeal.H

(5) The findings of the High Court can be gleaned from the followingparagraphs:

“2. The Land Acquisition Collector claims that possession of thesaid land was taken on 24.12.2008. Interestingly, they claim thatimmediately on taking over possession of the subject land the samewas handed to the DDA. However, the affidavit filed on behalfof the DDA states that possession was not handed over by theLand Acquisition Collector to the DDA. Apart form this the learnedcounsel for the petitioners points out that the respondents/LACcould not have taken possession of the subject land because therewas a status quo order which had been passed by a DivisionBench of this court on 18.11.2005 in W.P. (C) 21639/2005. That writ petition was dismissed on 20.08.2007. Thereafter a specialleave petition was filed before the Supreme Court being S.L.P.(C)No. 17504/2007 (later the special leave petition was admittedand has now become Civil Appeal Nos. 4116-4120 of 2009) inwhich stay was granted on 19.09.2007 and that has continued tilldate. Therefore, according to the learned counsel for the petitioners,possession of the said land has not been taken by the respondents.Insofar as the issue of compensation is concerned, it is an admittedposition that the same has not been offered or paid to the petitioners.

3. Without going into the controversy of physical possession,this much is clear that the Award was made more than fiveyears prior to the commencement of the 2013 Act and thecompensation has also not been paid. The necessary ingredientsfor the application of Section 24(2) of the 2013 Act asinterpreted by the Supreme Court and this Court in the followingcases stand satisfied:-

(1) Pune Municipal Corporation and Anr. v. HarakchandMisirimal Solanki and Ors.: (2014) 3 SCC 183;

(2) Union of India and Ors. v. Shiv Raj and Ors: (2014) 6SCC 564;

(3) Sree Balaji Nagar Residential Association v. State ofTamil Nadu and Ors: Civil Appeal No. 8700/2013 decided on10.09.2014;

(4) Surender Singh v. Union of India & Others: WP(C)2294/2014 decided on 12.09.2014 by this Court; and

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1172SUPREME COURT REPORTS

A(5) Girish Chhabra v. Lt. Governor of Delhi and Ors:WP(C)2759/2014 decided on 12.09.2014 by this Court.”

(6) We have heard learned counsel for the appellant and the learnedcounsel for the respondents.

(7) Learned counsel for the appellant would submit that theBimpugned judgment will not stand scrutiny of this Court in the light of thelater Constitution Bench judgment of this Court in Indore DevelopmentAuthority v. Manoharlal and Others (2020) 8 SCC 129 hereinafterreferred to as the Constitution Bench decision. It is his case that theconduct of the respondents in filing the writ petitions we have advertedCto and the special leave petition later converted into civil appeal andwhat is more important, obtaining interim orders prevented the appellantfrom taking possession of the property in question clearly, disentitles therespondents from claiming the benefit of the alleged lapsing of theproceedings under Section 24(2) of the 2013 Act.

DThis position is clear from the perusal of the judgment of theConstitution Bench which we have adverted to. He would submit thatthe respondents cannot be permitted to take advantage of order obtainedby them from the Court and then set up a case under Section 24(2) ofthe 2013 Act.

E(8) Per contra, learned counsel for the respondents would pointout that quite apart from the issues which arise from judgment of theConstitution Bench, there is another dimension which has unfolded. Thislater development consists of the following:

The National Highways Authority of India came to notify the landsFin question acting under the National Highways Act, 1956 (hereinafterreferred to as ‘1956 Act’ for brevity) by issuance of a notification underSection 3A of the said Act on 01.12.2018. The notification under Section3A comprehend the lands in question. What is more, the matter progressedfurther to the stage of declaration under Section 3D. The declarationwas published on 22.03.2019. He would, therefore, submit that whateverGwould be the effect of the later judgment in the facts of this case, theinterest of justice demands, that the respondents are given the benefit ofthe compensation under the 2013 Act.

(9) This is sought to be countered by the learned counsel for theappellant by pointing out that again, on the facts, the respondents are notHentitled to any benefit based on the subsequent developments. He does not dispute that a notification was indeed issued under Section 3A of the1956 Act on 01.12.2018 including the lands of the respondents in questionin this case. He also does not dispute that the declaration under Section3(D) followed on 22.03.2019. However, he points out that the Collector,finding that the lands of the respondents which are the subject matter ofthe appeal before this Court stood already vested, has excluded the landswhen it made the final Award on 05.11.2020. Learned counsel for theappellant would also point out that this Court has held that State cannotacquire land which is already vested with it [See in this regard (2010)9 SCC 782].

(10) There is no dispute about certain facts. Notification came tobe issued under Section 4 of the 1894 Act on 21.03.2003. This wasfollowed up by declaration under Section 6 on 18.03.2004 which wasfollowed up by Award passed on 22.08.2005.

An interim order is passed undoubtedly which effectively preventedthe appellant from taking possession of the lands in question. Though thewrit petition came to be dismissed on 20.08.2007, the respondents carriedthe lis to this Court and it is again not in dispute that the interim ordercontinued to haunt the appellants as it prevented the appellants fromtaking possession of the lands which it could otherwise have taken. Withthe enactment of the 2013 Act with effect from 01.01.2014, even whenthe civil appeal was pending, the respondents filed a fresh round of litigationin the form of a writ petition. Therein the claim was that the earlierAward has lapsed on the basis of Section 24(2) of the 2013 Act. Thisargument, as we have noted, has found favour with the High Court inthe impugned judgment.

It is thereafter, that the civil appeal came to be withdrawn. It isthe case of the appellant that except for 81 days, there was an interimorder prevailing, which effectively prevented the appellant from takingpossession of the lands at the instance of the respondents.

(11) At this juncture, it is appropriate to take note of what thisCourt has laid down in the Constitution Bench decision regarding theeffect of orders by Courts operating as an obstacle in the path of AcquiringAuthority taking possession of the land which is acquired:

“300. In our considered opinion, litigation which initiated by thelandowners has to be decided on its own merits and the benefits ofSection 24(2) should not be available to the litigants. In case there A

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is no interim order, they can get the benefits they are entitled to, nototherwise as a result of fruit of litigation, delays and dilatory tacticsand sometime it may be wholly frivolous pleas and forged documentsas observed in V. Chandrasekaran [V. Chandrasekaran v.Administrative Officer, (2012) 12 SCC 133 : (2013) 2 SCC (Civ)136 : (2013) 4 SCC (Cri) 587 : (2013) 3 SCC (L&S) 416] mentionedabove.

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306. When the authorities are disabled from performing dutiesdue to impossibility, would be a good excuse for them to savethem from rigour of provisions of Section 24(2). A litigant may beright or wrong. He cannot be permitted to take advantage of asituation created by him of interim order. The doctrine“commodum ex injuria sua nemo habere debet” that isconvenience cannot accrue to a party from his own wrong.Provisions of Section 24 do not discriminate litigants or non-litigantsand treat them differently with respect to the same acquisition,otherwise, anomalous results may occur and provisions maybecome discriminatory in itself.

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309. It may not be doubtful conduct to file frivolous litigation andobtain stay; but benefit of Section 24(2) should not be conferredon those who prevented the taking of possession or payment ofcompensation, for the period spent during the stay.

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314. The maxim “lex non cogit ad impossibilia” means that thelaw does not expect the performance of the impossible. Thoughpayment is possible but the logic of payment is relevant. Thereare cases in which compensation was tendered, but refused andthen deposited in the treasury. There was litigation in court, whichwas pending (or in some cases, decided); earlier references forenhancement of compensation were sought and compensation wasenhanced. There was no challenge to acquisition proceedings ortaking possession, etc. In pending matters in this Court or in theHigh Court even in proceedings relating to compensation, Section24(2) was invoked to state that proceedings have lapsed due tonon-deposit of compensation in the court or to deposit in thetreasury or otherwise due to interim order of the court needfulcould not be done, as such proceedings should lapse.

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We may notice further that the Court elaborately dealt with theHprinciple of restitution and had this to say:

338. A wrongdoer or in the present context, a litigant who takeshis chances, cannot be permitted to gain by delaying tactics. It isthe duty of the judicial system to discourage undue enrichment ordrawing of undue advantage, by using the court as a tool. InKalabharati Advertising v. Hemant Vimalnath Narichania[Kalabharati Advertising v. Hemant Vimalnath Narichania,(2010) 9 SCC 437 : (2010) 3 SCC (Civ) 808] , it was observedthat courts should be careful in neutralizing the effect ofconsequential orders passed pursuant to interim orders. Suchdirections are necessary to check the rising trend among thelitigants to secure reliefs as an interim measure and avoidadjudication of the case on merits. Thus, the restitutionary principlerecognizes and gives shape to the idea that advantages securedby a litigant, on account of orders of court, at his behest, shouldnot be perpetuated; this would encourage the prolific or seriallitigant, to approach courts time and again and defeat rights ofothers — including undermining of public purposes underlyingacquisition proceedings. A different approach would mean that,for instance, where two landowners (sought to be displaced fromtheir lands by the same notification) are awarded compensation,of whom one allows the issue to attain finality — and moves on,the other obdurately seeks to stall the public purpose underlyingthe acquisition, by filing one or series of litigation, during thependency of which interim orders might inure and bind the parties,the latter would profit and be rewarded, with the deemed lapsecondition under Section 24(2). Such a consequence, in the opinionof this Court, was never intended by Parliament; furthermore, therestitutionary principle requires that the advantage gained by thelitigant should be suitably offset, in favour of the other party.

366.2. In case the award has been passed within the windowperiod of five years excluding the period covered by an interimorder of the court, then proceedings shall continue as providedunder Section 24(1)(b) of the 2013 Act under the 1894 Act as if ithas not been repealed.

366.8. The provisions of Section 24(2) providing for a deemedlapse of proceedings are applicable in case authorities have faileddue to their inaction to take possession and pay compensation forfive years or more before the 2013 Act came into force, in aproceeding for land acquisition pending with the authority concerned ABC

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Aas on 1-1-2014. The period of subsistence of interim orders passedby court has to be excluded in the computation of five years.

(12) On the application of the aforesaid principles to the facts ofthis case, there cannot be any doubt that the respondents cannot takeshelter underSection 24(2) of the 2013 Act. This is for the simple reasonBthat it is by their conduct in approaching the Courts and obtaining interimorders that the appellant was prevented from taking possession of thelands. We are clear in our minds that this is indeed one such case wherethe respondents have launched litigation, obtained orders and it has clearlyprevented the appellant from taking possession and therefore, theimpugned judgment of the High Court would have to be set aside.C

(13) The problem, however, is sought to be projected by the learnedcounsel for the respondents based on the subsequent developments whichwe have already noted.

It is true that a notification has been issued under Section 3A ofDthe 1956 Act also. It is equally true that acting upon the notification aftercalling for the objections, declaration has been made under Section 3Dof the 1956 Act.

The scheme of the 1956 Act essentially consists of issuance ofnotification under Section 3A corresponding to Section 4 of the 1894EAct, followed up by an inquiry ordinarily and culminating in a declarationunder Section 3D. It is undoubtedly true that the legal effect of thedeclaration under Section 3D of the 1956 Act is that the property wouldvest thereupon.

(14) Here, therefore, we are presented with a situation where, onFthe one hand, the vesting has already taken place under Section 16 ofthe 1894 Act. No doubt, under Section 16, possession is to be taken onpassing of the Award. But here, it is only solely on account of the conductof the respondents in filing a writ petition and orders being passed bycourts that possession could not be taken. On the other hand, during thependency of the challenge against the impugned judgment, undoubtedly,Gproceedings have been launched under the 1956 Act, as already noted.Here, we must bear in mind that the land in question was needed for apublic purpose-construction of the road. It is apparently, no doubt, duringthe pendency of the litigation before this Court that proceedings underSection 3A have been taken, followed up by declaration under Section3D.H

(15) At this juncture, we must notice the principles laid down inJaipur Development Authority v. Mahesh Sharma and Another (2010)9 SCC 782:

“26. Despite vesting of the land with the Government under theprovisions of the Jagir Act and also resumption of the said landmeasuring 29 bighas and 17 biswas by the Government, anotification proposing acquisition of the said land was issued bythe Government under Section 4(1) of the Act followed by thenotification under Section 6 of the Act. The Land AcquisitionOfficer even proceeded to pass an award in respect of the land,which already belonged to the Government, by determiningcompensation, and proceeded further in directing retention ofinterim compensation paid under the Jagir Act and also by directingthe allotment of a plot of developed land measuring 2500 sq yd.Although there was no law supporting such action, the said actionon the part of the Land Acquisition Officer directing the paymentof compensation and also allotting a plot of land in favour of therespondent indicates as to how government officials, who areprotectors of the government property, abuse their power andtrust under the camouflage of performance of their public duty.

32. In State of Orissa v. Brundaban Sharma [1995 Supp (3)SCC 249] this Court has held that the Land Acquisition Act doesnot contemplate or provide for the acquisition of any interestbelonging to the Government in the land on acquisition. It reiteratedthe settled position of law that the Government being the ownerof the land need not acquire its own land merely because a personmistakenly resorted to acquire the land and later on mistakenlypublished notifications under Sections 4 and 6 of the Act.

33. The aforesaid position was reiterated in a subsequent decisionof this Court in Meher Rusi Dalal v. Union of India [(2004) 7SCC 362] . In SCC para 15 of the said judgment, this Court hasheld that the High Court has clearly erred in setting aside theorder of the Special Land Acquisition Officer declining a referencesince it is settled law that in land acquisition proceedings theGovernment cannot and does not acquire its own interest. Whilelaying down the aforesaid law, this Court has referred to its earlierdecision in Collector of Bombay v. Nusserwanji Rattanji Mistri[AIR 1955 SC 298 : (1955) 1 SCR 1311].

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34. We may at this stage appropriately refer to the decision of thisCourt in Kiran Singh v. Chaman Paswan [AIR 1954 SC 340 :(1955) 1 SCR 117] . In the said case this Court has held thatjudgment passed by a court without jurisdiction is a nullity andsuch a judgment could be challenged even in execution or collateralproceedings. The Court at SCR p. 121 at para 6 held thus: (AIRp. 342, para 6)

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“6. … It is a fundamental principle well established that a decreepassed by a court without jurisdiction is a nullity, and that itsinvalidity could be set up whenever and wherever it is sought tobe enforced or relied upon, even at the stage of execution andeven in collateral proceedings.”

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36. In view of the aforesaid decisions of this Court, it is crystalclear that the issuance of notifications under Sections 4 and 6 ofthe Act as also the award passed for acquisition of the land was anullity and the subsequent action of the Governmentderequisitioning land by issuance of notification under Section 48was just and proper as that was an action for rectification of themistake. The subsequent Land Acquisition Officer was justifiedin refusing to refer to the Reference Court in view of the fact thatthe land was already a government land and was so described inthe revenue record itself. The Land Acquisition Officer, whopassed the award, committed an illegality by not only determiningthe compensation under the Land Acquisition Act but also directingfor retention of the interim compensation paid under the Jagir Actand also in directing for allotment of a developed plot of landadmeasuring 2500 sq yd.

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(16) We have to call into play certain principles in view of thepeculiar nature of the facts.

On the one hand, it is a case where the so-called subsequentdevelopments had taken place during the pendency of the appeal beforeGthis Court. On the other hand, the authority obviously realizing the needto acquire the land for public purpose that is for construction of roadresorted to the provisions of the 1956 Act. Here again, we must bear inmind the principle that the Government cannot acquire the land whichhas already vested in it. The other aspect we must also bear in mind isrealizing the fact that the lands in question are the subject matter of theHappeal and what is more, they would stand vested in terms of the

Constitution Bench judgment of this Court the lands have been excludedwhen the final Award was passed under the 1956 Act. We may notehere that the respondents do not have a case that they have laid anychallenge to the exclusion of their lands in the final Award. Whateverthat may be, the fact remains that all these developments took placeduring the pendency of the appeal.

(17) When the Court finally decides the lis, it is undoubtedly, open,particularly this Court, having powers as it has under Article 142, to docomplete justice between the parties and we take it that the learnedcounsel for the respondents is seeking to invoke the said jurisdiction.

(18) If it is the principle of estoppel which can be invoked as itwould appear to us from the line of argument taken by the learned counselfor the respondents, we are of the view that it is not tenable. Estoppelflows from equity.

(19) In the work SPENCER BOWER: RELIANCE-BASEDESTOPPEL 5[th] Edition, we notice the following discussions.

“1.68 The requirement of unconscionability is that B cannot ingood conscience assert that which he is estopped from asserting.Its use derives from equitable jurisprudence, ‘… reflecting in theword “conscience” the ecclesiastical origins of the long-departedCourt of Chancery’ sitting as a court of conscience. Honesty andinnocence of intention will not, however, excuse B from liability toestoppel: what is material is not the state of B’s morals, but theeffect of his representation or silence on the mind and will of A.B’s conduct need not, moreover, be shocking in any particulardegree, beyond that, absent an estoppel, it would give rise to anunfair result. Lord Walker in Cobbe v Yeoman’s Row ManagementLtd referred to the need for the result, without an estoppel, to‘shock the conscience of the court’ but should not, it is submitted,be understood as requiring the court to find more than that B hasby his representation caused A so to act (or omit to act) that theresult would otherwise be unfair. The caution of Lord Radcliffe inBridge v Campbell Discount as to its use in the context of equitablemitigation of the common law must also be exercised here.“Unconscionable” must not be taken to be a panacea for adjustingany contract between competent persons when it shows a roughedge to one side or the other…’. A flexible definition has beenprovided by Deane J in Common-wealth of Australia v Verwayen:

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A‘The doctrine of estoppel by conduct is founded upon goodconscience… The most that can be said is that “unconscionable”should be understood in the sense of referring to what one party“ought not, in conscience, as between (the parties) to be allowed”to do (see Storey, Commentaries on Equity Jurisprudence, 2[nd]Eng Ed (1892) para 1219; Thompson v Palmer).”B

(20) No doubt it could be argued that perhaps it may be the doctrineof election which is apposite. It is in connection with the cases related toelection that terms like approbate and reprobate find mention. It couldbe contended that it may not be fair to allow the appellant to proceedunder the 1956 Act and for the proceedings to culminate in the vestingCof the property under Section 3D of the 1956 Act and having elected totake proceedings under the 1956 Act apparently on the basis of theimpugned judgment namely that the proceeding under the 1894 Act stoodlapsed, the authorities cannot be permitted to resile from their action.We would think that it would be wholly inequitable on facts to depriveDthe appellant of its rights when it is finally adjudicated in its favour in thefacts of this case. It is also a case where the appellant has promptlyapproached this court against the impugned judgment. Furthermore, inthe facts the balancing of equity must be worked out in favour of theappellant. In other words, the mere fact that proceedings were takenduring the pendency of the case and it had reached the stage of declarationEunder Section 3D of the 1956 Act cannot suffice to cloth the respondentswith a right to claim the fruits of the said proceedings, when on the finaldisposal of the appeal by us we only find that in law as declared by thiscourt in the Constitution Bench, the land already would stand vestedunder the 1894 Act and as already noticed there cannot be vesting twiceFover.

(21) We would think that in the facts of this case having regard tothe fact that barring 81 days the respondents succeed on the strength ofinterim order passed from preventing the appellant from taking possessionof the lands must be the crucial aspect which we have referred to.G

(22) The principle which has appealed to the Constitution Benchof this Court is squarely applicable to the facts of this case. The publicauthority which had set the law in motion under the earlier regime cannotbe put to a loss when at the end of the day or on the day of reckoning itis found that they must succeed in law. Here we have found that theHappellant is fully justified in contending that but for the orders passed by [K. M. JOSEPH, J.]

the High Court and this Court, the possession would have been taken,and the land would have vested under the law. We must proceed on thebasis that but for the interim orders passed which cannot survive thefinal disposal of the cases, the land would have stood vested with theGovernment under the earlier regime. The subsequent vesting which isattributed to Section 3D of the 1956 Act, in our view must pale intoinsignificance and cannot estop the appellant from contending that inlaw the land would vest under the notification/ award issued under the1894 Act.

(23) Having seen the background of the facts, we do not thinkthat there is any right for the respondents to plead equity for they haveby their acts effectively prevented the public authority from enjoying thefruits of law by which, in the exercise of power embedded in the 1894Act, the land is vested with the appellant, and the land is one which isneeded for an important public project like construction of the road forthat matter.

(24) It is clear as daylight that it would be completely antitheticalto public interest were the Government be compelled to shell out publicfunds under the 2013 Act to acquire land which already belongs to it.We cannot be oblivious to the said sublime principle as well.

(25) We must again also bear in mind the restitutionary principlewhich has been adverted to by the Constitution Bench. As we havealready noticed, realizing that the lands are already vested, the lands arealready excluded under the final award. The inevitable outcome of theabove discussion is that the appellant must succeed.

(26) However, in the facts of this case and in the interest of justice,we think it fit to direct that if the respondents have not filed any applicationunder Section 18 of the 1894 Act seeking reference and claiming enhancedcompensation pursuant to the Award dated 22.08.2005, the respondentsshould be granted an opportunity to make an application under Section18 and the matter be adjudicated under the earlier Act. The impugnedjudgment came to be passed based on the law as it was laid down by thisCourt. Accordingly, we direct that in case, the respondents have alreadynot filed an application within the meaning of section 18 of the 1894 Act,they are permitted to file application under Section 18 of the 1894 Actwithin a period of one month from today. In case such an application ismade, it will be dealt with in accordance with law as it stood under the1894 Act.

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1182SUPREME COURT REPORTS

AThe application will not be dismissed on the ground of delay. Wemake this order in the peculiar facts of this case and taking note of thefact that it is with our judgment rendered today that we are giving ourimprimatur to the Award dated 22.08.2005 under the 1894 Act.

The appeal is allowed. The impugned judgment will stand set aside.BParties to bear their own costs.

Nidhi Jain

Appeal allowed.

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