UNION OF INDIA & ORS. versus GOPALDAS BHAGWAN DAS & ORS. on 4 February 2020

[2020] 3 S.C.R. 765

UNION OF INDIA & ORS.

v.

GOPALDAS BHAGWAN DAS & ORS.

(Civil Appeal No. 3636 of 2016)

FEBRUARY 04, 2020

[R. F. NARIMAN, S. RAVINDRA BHAT ANDV. RAMASUBRAMANIAN, JJ.]

Land Acquisition Act, 1894 – ss.4(1), 6 – In 1943, Govt. ofIndia requisitioned 4 acres and 34 gunthas of land bearing SurveyNo. 120/2 (Part) of Village Malad, Mumbai – In 1949, 2.68 acresland out of the aforesaid land was de-requisitioned – In 1975,notification was issued u/s.4(1) acquiring the said extent of 8623sq.m. – Declaration u/s.6 issued in 1978 – Draft Award passed in1986 – Challenge made in the present case in the year 2002 – In aproceeding concerning other lands covered by the same s. 4notification, Supreme Court in Kulsum R. Nadiadwala v. State ofMaharashtra and Ors., allowed appeal by land owner – In viewthereof, present case referred to larger Bench that delay and lacheshave to be ignored – Held: On facts, question of delay and lachesneed not be answered as s.4 notification that was struck down inKulsum R. Nadiadwala’s case is the very notification in the facts ofthis case wherein the entire acquisition proceedings were quashed– Unable to agree with appellant’s contention that the s.4 notificationnot only deals with various other lands in Village Malad but alsodeals with a land in a different village altogether viz., VillageWadhawan, and that Supreme Court’s judgment did not go to theextent of declaring the acquisition bad so far as village Wadhawanis concerned – So far as village Malad is concerned where the landin Kulsum R. Nadiadwala’s case was land that was adjacent to thepresent land, the very s.4 notification was struck down and declarednull and void – This being the case, it would not be in the interest ofjustice to allow the present appeal in favour of appellant, as thiswould amount to a discrimination between two persons who areotherwise similarly placed – Further, Kulsum R. Nadiadwala’s casedid not deal with newspaper publication at all – It only dealt withthe requirement of publication in the Official Gazette and public

765

A

B

C

DEF

G

H

Anotices of the substance of the notification being given in the localityin which the lands are acquired, both of which were held to becumulative and mandatory requirements of s.4 – Given the fact thatthis is a Defence project in which possession has been with theUnion since 1942, the same facts would obtain as in Kulsum R.Nadiadwala’s case in which relief was granted – Therefore, presentBcase cannot lead to a different conclusion on similar facts – Defenceof India Rules, 1939 – r. 75A – Constitution of India – Arts. 141and 142.

Dismissing the appeal, the Court

Dismissing the appeal, the Court

CHELD: 1.1 Though this Court has, by its order dated27.03.2018, referred this case to a larger Bench in view of thedecision in Kulsum R. Nadiadwala’s case that delay and lacheshave to be ignored, the Court is of the view that on the facts ofthis case, the Court need not answer this question. This is forthe reason that the Section 4 notification that was struck down inDKulsum R. Nadiadwala’s case is the very notification in the factsof this case. In Kulsum R. Nadiadwala’s case, this Court quashedthe entire acquisition proceedings stating that they be declaredas null and void. Unable to agree with the contention that theSection 4 notification not only deals with various other lands inEVillage Malad but also deals with a land in a different villagealtogether viz., Village Wadhawan, and that this Court’s judgmentdid not go to the extent of declaring the acquisition bad so far asvillage Wadhawan is concerned. So far as village Malad isconcerned, where the land in Kulsum R. Nadiadwala’s case wasland that was adjacent to the present land, the very Section 4Fnotification has been struck down and declared null and void,and this being the case, it would not be in the interest of justiceto allow the present appeal in favour of the Union of India, as thiswould amount to a discrimination between two persons who areotherwise similarly placed. [Para 8][772 G-H; 773 A-D]G

1.2 Even though newspaper publication of the Section 4notification came in by amendment for the first time in 1984, therequirement of public notice where the land is situate in additionto publication in the Official Gazette, was always there from theinception. Kulsum R. Nadiadwala’s case did not deal with H

newspaper publication at all. It only dealt with the requirementof publication in the Official Gazette and public notices of thesubstance of the notification being given in the locality in whichthe lands are acquired, both of which were held to be cumulativeand mandatory requirements of Section 4. In Indore DevelopmentAuthority’s case, the Constitution Bench is seized of severalquestions, all of which pertain to the construction of Section 24of the Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013. Thus, itis wholly unnecessary to adjourn this case in order to await thejudgment of the Constitution Bench in this case. Given the factthat this is a Defence project in which possession has been withthe Union since 1942, the same facts would obtain as in KulsumR. Nadiadwala’s case in which relief has been granted to KulsumR. Nadiadwala. This case, therefore, cannot lead to a differentconclusion on similar facts. It is important to make a distinctionbetween a declaration of law which would bind other future casesunder Article 141 of the Constitution of India and an order madein the facts of the case which may equally be made to do substantialjustice on the facts of a given case, sometimes under Article 142.In Kulsum R. Nadiadwala, though the appellant’s claim wasrestricted to only 50 per cent of the land in question, so far as theother 50 per cent is concerned, the judgment itself makes areference to the fact that the appellants are legal heirs of onedeceased Ismail Nadiadwala and that there was another claimantwhose name was Ibrahim Nadiadwala to whom, presumably, 50per cent of the property went. Since only Ismail Nadiadwala’sheirs were prosecuting the appeal, this direction appears to havebeen made. [Paras 10-15][774 B-H; 775 A-B]

Kulsum R. Nadiadwala v. State of Maharashtra and Ors.(2012) 6 SCC 348 : 2012 (7) SCALE 212 – relied on.

Indore Development Authority v. Manohar Lal andOthers Etc. [2019] 14 SCALE 470 – referred to.

Case Law Reference

A

B

C

D

E

F

G

H

ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 3636of 2016.

From the Judgment and Order dated 31.07.2015 corrected on11.09.2015 of the High Court of Judicature at Bombay in Writ PetitionNo.1667 of 2002.B

Ms. Rekha Pandey and Arvind Kumar Sharma, Advs. for theAppellants.

Shyam Diwan, Sr. Adv., Y. Raja Gopala Rao, Ms. Y. Vismai Raoand Bhav Ratan, Advs. for the Respondents.

CThe Judgment of the Court was delivered by

R. F. NARIMAN J.

1. This matter has a somewhat chequered history.

2. In 1943, Government of India requisitioned 4 acres and 34gunthas of the land owned by one Rajabahadur Bhagwandas Haridas,Dbearing Survey No. 120/2 (Part) of Village Malad, Mumbai, in exerciseof powers conferred under Rule 75A of the Defence of India Rules,1939. On 27.07.1949, the Collector, Thane, de-requisitioned 2.68 acresin the Survey No. 120 Part 2 out of the aforesaid 4 acres 34 gunthas.Ultimately, despite the land having first being requisitioned, a notificationEunder Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referredto as ‘Act’), was issued on 24.10.1975 acquiring the aforesaid extent of8623 square meters. A declaration under Section 6 of the Act was issuedon 30.11.1978. According to the respondents herein, a Draft Award waspassed under Section 11 of the Act on 23.09.1986, against whichreferences were made, both under Section 18 and 30, of the Act. TheFrespondents confirmed that after symbolic possession was taken on06.01.1987 by the State, such possession has remained with the State tilldate.

3. In a proceeding that was filed, insofar as other lands in VillageMalad were concerned, covered by the same section 4 notification, thisGCourt in Kulsum R. Nadiadwala v. State of Maharashtra and Ors.(2012) 6 SCC 348, allowed an appeal by the land owner. After stating inparagraph 2 that the very same section 4 notification was issued in orderthat a Central Ordinance Depot for the Union of India be made fordefence purposes, the judgment records that the beneficiary of theseHlands, 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 ofMaharashtra, basically on the ground that the writ petition should havebeen dismissed on the ground of delay and laches as was done by theimpugned High Court judgment. After setting out Section 4 of the Act,this Court observed that the requirement that the notification under Section4 be published in the Official Gazettee and the requirement that theAcquiring Authority should publish public notices of the substances ofsuch notification in a convenient place or places in the locality in whichthe 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 Courthad filed their reply affidavit. They did not dispute the contentionsof the appellants that they had not issued any public notices asrequired under Section 4 of the Act. They only reiterated thatsuch notification was published in the Official Gazette. Since themandatory requirement as required under Section 4(1) of the Actis not complied with by the respondents, while acquiring the landsin question, in our opinion, the entire acquisition proceedingsrequires to be declared as null and void.

14. This Court in J&K Housing Board v. Kunwar Sanjay KrishanKaul has observed that all the formalities of serving notice to theinterested person, stipulated under Section 4 of the Act, has to bemandatorily complied with in the manner provided therein, eventhough the interested persons have knowledge of the acquisitionproceedings. This Court further observed thus:

“32. It is settled law that when any statutory provision providesa particular manner for doing a particular act, the said thing oract must be done in accordance with the manner prescribedtherefor in the Act. Merely because the parties concerned wereaware of the acquisition proceedings or served with individualnotices does not make the position alter when the statute makesit very clear that all the procedures/modes have to be strictlycomplied with in the manner provided therein. Merely becausethe landowners failed to submit their objections within 15 daysafter the publication of notification under Section 4(1) of theState Act, the authorities cannot be permitted to claim that itneed not be strictly resorted to.”

AB

C

D

E

F

G

H

A15. In view of the conclusion that we have reached on the firstissue canvassed by the learned counsel for the appellants, we donot think that other issues that the learned counsel for the appellantshas raised and canvassed before us need to be answered.”

4. It may only be mentioned that in Kulsum R. Nadiadwala’sBcase (supra), the challenge was made by way of a writ petition filed in1987, as opposed to the present challenge, which was made only in theyear 2002.

5. Ms. Rekha Pandey, learned counsel appearing on behalf of theappellant, has raised several points in support of this appeal. First andCforemost, she adverted to an order of this Court dated 27.03.2018 bywhich a Division Bench of this Court has referred this matter to a largerBench of three Judges. This order reads as follows:

“1. The land of the respondents was acquired vide notificationdated 24.10.1975 under Section 4 of the Land Acquisition Act,D1894 (the Act). The said land was earlier requisitioned in the years1942 to 1945 for defence purpose. Award was made in the year1986 and symbolic possession of the land was taken on 06.01.1987.Objections of the award were filed by the respondents againstthe award. A reference under Section 18 of the Act was madewhich was disposed of. Thereafter, the writ petition was filed byEthe respondents mainly on the ground that there was no duepublication of the notification under Section 4 of the Act whichwas a mandatory requirement.

2. The High Court upheld the plea of the respondents relying uponjudgment of this Court in “Kulsum R. Nadiadwala Vs. State ofFMaharashtra” (2012) 6 SCC 348.

3. Learned counsel for the appellants submitted that having regardto the fact that the land was already being used for defence purposesince the year 1942 to 1945 and the notification under Section 4issued on 24.10.1975 was challenged for the first time by the writGpetition filed on 24.06.2002, the High Court should have dismissedthe writ petition on the ground of delay and laches as entertainingsuch petition will seriously affect public interest. It was submittedthat view taken in the relied upon judgment ignores the concept oflaches.

H

4. Learned counsel for the respondents submits that in spite ofdelay and laches, this Court in the aforesaid judgment quashedthe acquisition.

5. We are of the view that delay and laches may be a bar tochallenge to the acquisition after 27 years. In Tamil Nadu HousingBoard, Chennaiversus M. Meiyappan and ors (2010) 14 SCC 309this Court held that inland acquisition proceedings the Court shouldnot encourage stale litigation as it may hinder projects of publicimportance. The contra view in three-Judge Bench decision inDayal Singh versus Union of India (2003) 2 SCC 593 was held tobe in conflict with the Constitution Bench judgment in RabindranathBose versus Union of India (1970) 1 SCC 84 and three-JudgeBench judgment in Printers (Mysore) Ltd. versus M.A.Rasheed(2004) 4 SCC 460. The said judgment was cited withapproval in recent judgment of three-Judge Bench in IndoreDevelopment 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 two-Judge Bench in KulsumR. Nadiadwala versus State of Maharashtra (2012) 6 SCC 348 tothe effect that delay and laches have to be ignored is not freefrom doubt.

7. Thus, we are of the view that the matter needs to be placedbefore a Bench of three Judges.

8. Accordingly, let the papers be placed before Hon’ble the ChiefJustice of India for appropriate directions.”

6. Ms. Pandey, learned counsel, has argued before us that as amatter of law, such a huge delay in filing a writ petition against Section 4notification cannot possibly be countenanced. She has also argued thatin Kulsum R. Nadiadwala’s case (supra), really speaking, the delay isonly of one year, as the Award in this case was issued only in the year1986, and the writ petition filed in that case was of 1987. In the presentcase, the writ petition, as has been stated earlier, was filed only in 2002.Another important point of difference, according to the learned counselis that notice was personally served on the respondents in this case,which is not the case in Kulsum R. Nadiadwala’s case (supra). Shealso raised the point that was raised in the special leave petition filed by A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Athe 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 theAmendment Act of 1984, when the Section 4 notification was only of1975, the 1984 Amendment Act not being retrospective. She furtherwent on to state that, in any case, the Constitution Bench is taking up, asone of the pleas before it in Indore Development Authority v. ManoharBLal and Others Etc. (SLP (C) Nos. 9036-9038 of 2016) whether delaywould apply as a good ground for dismissing a writ petition on the groundof laches insofar as challenges to land acquisition proceedings areconcerned, and that we should await the judgment of the ConstitutionBench before proceeding with the judgment in this case. She kept harpingCupon the fact that the acquisition in this case is for important defencepurposes and possession of this land has been with the Union Governmentsince 1942. She also stated that Kulsum R. Nadiadwala’s judgment, ifproperly read, did not amount to quashing of the entire section 4notification, particularly in view of the last paragraph of the judgment,where the claim of the appellant was restricted only to 50 per cent of theDland in question, the direction being that the respondents shall hand over50 per cent of the vacant possession of the said land to the appellantforthwith.7. As against these submissions, Shri Shyam Divan, learned seniorcounsel appearing on behalf of the respondents, argued that that theEsection 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 reviewpetition and a curative petition have been dismissed, the said judgmentwould apply on all fours to the facts of this case. He pointed out that thequestion of delay, though raised by the learned counsel who appeared onFbehalf of the State, was not directly answered in Kulsum R.Nadiadwala’s case inasmuch as, according to the Division Bench ofthis Court in Kulsum R. Nadiadwala’s case, a mandatory condition of asection 4 notification not being adhered to, would amount to there beingno acquisition at all in the eye of law. On this ground, he defended theimpugned judgment passed by the Bombay High Court.G

8. Though this Court has, by its order dated 27.03.2018, referredthis case to a larger Bench in view of the decision in Kulsum R.Nadiadwala’s casethat delay and laches have to be ignored, we are ofthe 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 struckH

down in Kulsum R. Nadiadwala’s case is the very notification in thefacts of this case. We may also note that in paragraph 13 of the KulsumR. Nadiadwala’s case set out hereinabove, this Court quashed the entireacquisition proceedings stating that they be declared as null and void.We are unable to agree with Ms.Pandey’s contention that the Section 4notification not only deals with various other lands in Village Malad butalso deals with a land in a different village altogether viz., VillageWadhawan, and that this Court’s judgment did not go to the extent ofdeclaring 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, thevery section 4 notification has been struck down and declared null andvoid, and this being the case, it would not be in the interest of justice toallow the present appeal in favour of the Union of India, as this wouldamount to a discrimination between two persons who are otherwisesimilarly placed.

9. Adverting to some of the other submissions made byMs. Pandey, first and foremost, in Kulsum R. Nadiadwala’s case, theHigh Court dismissed the writ petition filed therein on the ground ofthere being a 12 years delay in filing the writ petition, and not on theground that there was a one year delay as the Award in this case waspassed only in 1986. Secondly, the factum of notices actually beingserved in this case, as opposed to notices not being individually served inKulsum R. Nadiadwala’scase, apart from making no difference tomandatory 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 bythe First Respondent. Perusal of the Writ Petition and in particularClause (h) of Paragraph 4 thereof shows that a specific contentionhas been raised by the Petitioners that neither the Petitioners northeir predecessors were served with any notice and were notoffered any opportunity of raising objections to the Notificationunder Sub-section (1) of Section 4 of the said Act.

................................................................................. . .

................................................................................. . .

Affidavit of Shri Manoj Shankarrao Gohad, the Special LandAcquisition Officer (4) is completely silent as far as this factual AB

C

DE

F

G

H

774SUPREME COURT REPORTS

[2020] 3 S.C.R.

Aand legal challenge in this Petition is concerned.

………………………………………………………………………………………………………………………….………………………………………………………………………………………………………………………….”

10. Insofar as the “per incuriam” point is concerned, this can beBdisposed of by stating that even though newspaper publication of thesection 4 notification came in by amendment for the first time in 1984,the requirement of public notice where the land is situate in addition topublication in the Official Gazette, was always there from the inception.Kulsum R. Nadiadwala’s case did not deal with newspaper publicationat all. It only dealt with the requirement of publication in the OfficialCGazette and public notices of the substance of the notification beinggiven in the locality in which the lands are acquired, both of which wereheld to be cumulative and mandatory requirements of section 4.

11. So far as the Indore Development Authority’s case (supra)is concerned, the Constitution Bench is seized of several questions, all ofDwhich pertain to the construction of section 24 of the Right to FairCompensation and Transparency in Land Acquisition, Rehabilitation andResettlement Act, 2013.

12. This being the case, and regard being had to what we havestated hereinabove, it is wholly unnecessary for us to adjourn this caseEin order to await the judgment of the Constitution Bench in this case.

13. Given the fact that this is a Defence project in which possessionhas been with the Union since 1942, the same facts would obtain as inKulsum R. Nadiadwala’s case in which relief has been granted toKulsum R. Nadiadwala. This case, therefore, cannot lead to a differentFconclusion on similar facts.

14. As to the argument that no declaration that the entire section4 notification is quashed inasmuch as the claim of the appellants in KulsumR. Nadiadwala’s case was restricted only to 50 per cent of the lands inquestion, it is important to make a distinction between a declaration ofGlaw which would bind other future cases under Article 141 of theConstitution of India and an order made in the facts of the case whichmay equally be made to do substantial justice on the facts of a givencase, sometimes under Article 142.

15. On a reading of paragraph 16 of Kulsum R. Nadiadwala’sHjudgment, 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 other50 per cent is concerned, the judgment itself makes a reference to thefact that the appellants are legal heirs of one deceased Ismail Nadiadwalaand that there was another claimant whose name was Ibrahim Nadiadwalato whom, presumably, 50 per cent of the property went. Since onlyIsmail Nadiadwala’s heirs were prosecuting the appeal, this directionappears to have been made.

16. This being the case, we dismiss the appeal of the Union.

Divya Pandey

Appeal dismissed.

A

B

C

D

E

F

G

H