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Judgment
By this petition, the petitioners have challenged the notifications dated 20.3.1991 issued u/s 4 and declaration dated 28.2.1992 issued u/s 6 of the Land Acquisition Act 1894, (hereinafter referred to as the Act) whereby the petitioners land viz. Plots No. 542, 543 and 544 of Village Jainsinghpura Bangar, Mathura admeasuring area about 6.66 acres sought to be acquired under the Act.
It is stated in the writ petition that sometime in the year 1990, the then Vice-Chairman of Mathura Vrindavan Development Authority (hereinafter referred to as the Development Authority), one Sri Rajeev Kumar I.A.S. made and sent a proposal to the Collector, Mathura for acquiring 15.58 acres of land. In the district Mathura the Collector who was authority concerned with acquisition of land was also the Vice-chairman of Development Authority at relevant point in time. Thus the aforesaid Sri Rajeev Kumar, I.A.S was both Vice-chairman of the authority as well as Collector of district Mathura and it means that the authority which made request and proposal for acquisition of land was the same authority who was ultimately to take decision to recommend the acquisition of land to the Government for issuance of necessary notification by it. Apart from it the Collector while making inquiry u/s 5-A of the Act, acts as quasi-judicial authority, therefore, while doing so, he has become the judge in his own cause. Thus, the sanctity and objectivity attached to Section 5-A of the Act becomes redundant and otiose resulting in complete violation of the principles of natural justice as the action is vitiated on account of reasonable likelihood of bias. It is further stated that the Government without application of mind to the facts, including the fact that the same authority was proposer and the recommending authority, took a decision to issue notification u/s 4 of the Act, and a notification u/s 4 of the Act was issued on 20th March 1991 comprising an area of 15.58 acres land proposed to be acquired for the purpose of planned housing development by the Development Authority which is a public purpose. The petitioners'' aforesaid plots have also been included in the said notification.
It is further stated that a notice inviting objections u/s 5-A of the Act was issued by Collector, Mathura and was published in daily newspaper ''Amar Ujala dated 21.3.1991. In pursuance thereof, the petitioners have filed their objections u/s 5-A of the Act on 18.4.1991 ventilating their grievances in the said objections and it was specifically requested that they may be given opportunity of personal hearing also. One of the petitioner Sri Brij Pal Bhargava appeared before the Land Acquisition Officer on 3.5.1991. However on that date, Sri Bhargava was informed by the Land Acquisition Officer that the Land Acquisition Department had not filed the reply to the objections filed by the petitioners and also because of the fact that officers were busy in election duties, no hearing was possible on that day and therefore, the next date for personal hearing will be communicated to the petitioners in due course, but it is stated that the petitioners have never received any information from the respondents regarding next date for personal hearing and ultimately, the petitioners have learnt that on 28.2.1992 the Government also made a declaration u/s 6 of the Act for the aforesaid land. By the said declaration, the Government also invoked the urgency clause u/s 17(1) of the Act intending to take immediate possession of the land. A true copy of the notification dated 28.2.1992 is on record as Annexure-5 of the writ petition. It is further stated that in given facts and circumstances of the case, there was no justifiable reason for invoking urgency of power envisaged u/s 17(1) of the Act. As a matter of fact such provision has been invoked without application of mind in mechanical manner by the respondents. It is also stated that the Master Plan for Mathura indicates the user of land in question totally different for the purpose for which the land is sought to be acquired. There is no alteration by way of amendment in the Master Plan by which user of land in question has been changed into housing development. Thus, the notifications of Sections 4 and 6 of the Act are contradictory to the user of the land in question mentioned in the Master Plan of the Authority.
Besides aforesaid assertions made in the pleadings of the writ petition the learned Senior Counsel Sri Ravi Kant appearing for the petitioners has also submitted at the strength of further averments in pleadings of the writ petition that the proceeding under Sections 4 and 6 of the Act is vitiated on account of the fact that notification dated 20.3.1991 issued u/s 4 was not at all published in two daily news papers as required under the provisions of said Section, and the publication of notification by the Collector is not permissible under law as the power to publish the notification could not be delegated to the Collector nor in fact it has been so delegated. Similarly, the substance of notification was not published in the form of public notice at convenient place in the locality as required u/s 4(1) of the Act, thus on both the counts entire acquisition proceeding is held to be invalid and void ab initio. Secondly, the petitioners were not given opportunity of hearing in connection of objections filed u/s 5A of the Act and on that account also further proceeding is vitiated under law. Thirdly, there was no justifiable reasons for invoking Section 17(1) of the Act. The invocation of urgency is result of complete non application of mind and mechanical approach on the part of the State Government, therefore, the declaration u/s 6 and invocation of urgency provision u/s 17(1) of the Act are result of complete non application of mind and mala fide exercise of power and are, therefore, illegal and void. In support of his submission learned Counsel for the petitioners has cited several decisions of Hon''ble Apex Court, but the order which we propose to pass in the writ petition, we need not to refer the same.
Disputing the various averments made in the writ petition and in the justification of the impugned action, the respondents No. 1 and 2 have filed counter affidavit, besides, counter and supplementary counter affidavits have been filed on behalf of respondents No.3 and 4 of the writ petition, to which we will refer herein after at appropriate place.
However, contrary to the submission of learned Counsel for the petitioners Sri Shashi Nandan learned Senior Counsel assisted by Smt. Sunita Agrawal appearing on behalf of respondents No. 3 and 4 has submitted that since in pursuance of. said notifications for acquisition, the possession of land included in it, has been taken over by the respondents on 3rd April 1992 and award u/s 11 of the Act has also been made on 18th March 1994, therefore, the title of land in question stood vested in the State Government and Development Authority resulting which the State Government and beneficiary of the said acquisition became absolute owner of the land so acquired. In such a situation, the notifications under Sections 4 and 6 of the Act cannot be quashed in writ proceeding and no relief can be granted to the petitioners at this belated stage. In support of their submissions learned Counsel appearing for the respondents have also placed reliance upon several decisions of Hon''ble Apex Court to which we will deal a little later.
We have heard Sri Ravi Kant, learned Senior Counsel assisted by Smt. Neena Banerji for the petitioners and Sri Shashi Nandan. learned Senior Counsel assisted by Smt. Sunita Agrawal for contesting-respondents/Development Authority as well as learned Standing Counsel for the State and also perused the record of the writ petition.
Having regard to the rival submissions of learned Counsel for the parties, the first and foremost question that arises for our consideration is as to whether once the possession of land has been taken over either u/s 16 of the Act or Section 17(1) of the Act the notification under Sections 4 and 6 of the aforesaid Act can be quashed by this Court in writ jurisdiction under Article 226? In this connection for appreciating the controversy, it would be useful to extract the averments made in para 3.4 and 5 of the supplementary counter affidavit filed by Sri Prabhat Chandra Sharma, Assistant Engineer, Mathura Vrindavan Development Authority on behalf of respondents No. 3 and 4 of the writ petition as under:
That the notification dated 2Oth March, 1991 issued u/s 4 (1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was published in the Official Gazette on 27th April, 1991 and in two newspapers Amar Ujala'' and ''Aaj on 21st'' March, 1991 and 22nd March, 1991, respectively. Public notice of the substance of the Notification was caused on 29th March, 1991. Objections u/s 5-/1 of the Act were duly considered and thereafter the Notification u/s 6 of the Act was issued. The Notification u/s 6 of the Act dated 28th February, 1992 was published in the Official Gazette on 29th February, 1992 and in two newspapers Amar Ujala'' and Aaj on 18th March, 1992 and 19th March, 1992, respectively. Public notice of the substance of the Notification was caused on 17th March, 1992.
That thereafter notice u/s 9 of the Act was issued and possession was taken by the State and handed over to the Development Authority on 3rd April, 1992. A photostat copy of the possession certificate is annexed herewith as Annexure SCA-1 to this affidavit.
That thereafter the award has been made by the Special Land Acquisition Officer u/s 11 of the Act on 18th March, 1994, A true photostat copy of the award is annexed herewith as Annexure SCA-2 to this affidavit.
For better appreciation of the controversy, it would be useful to reproduce the provisions of Section 16 and 17(1) of the Act as under:
Power to take possession.- When the Collector has made an award u/s 11, he may take possession of the land, which shall thereupon [vest absolutely in the [Government]}, free from all encumbrances.
Special powers in cases of urgency- (1) In cases of urgency, whenever the [appropriate Government] so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the nonce mentioned in Section 9, Sub-section (1), [take possession of any land needed for public purpose.] Such land shall thereupon [vest absolutely in the [Government]], free from all encumbrances.
From a plain reading of the provisions of Section 16 of the Art, it is clear that when the Collector has made an award u/s 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances and similarly, in cases of urgency u/s 17(1) of the Act whenever the appropriate Government so directs, the Collector, though no such award has been made, may on expiration of fifteen days from publication of notice mentioned in Section (), Sub-section (1), take possession of any land needed for public purpose, such land shall thereupon vest absolutely in the Government free from all encumbrances. Therefore, from bare reading of the aforesaid provisions of the Act it is clear that when the Collector has taken over possession of the land either on making award u/s 11 of the Act or on expiry of fifteen days from the publication of notice u/s 9 Sub-section (I) of the Act by invoking urgency clause u/s 17(1) of the Act, even if no such award could be made, the land included in notifications under Sections 4 and 6 of the Act shall thereupon be vested absolutely in the Government free from all encumbrances. Thus, once the title of land sought to be acquired s vested absolutely in the State or beneficiary of the acquisition proceeding, the question arises for consideration as to whether the notifications under Sections 4 and 6 of the Act, can be quashed by this Court in writ proceeding under Article 226 of the Constitution of India?
In this connection, it is to be pointed out that the question in issue is no longer, res Integra, rather it has received consideration of Hon''ble Apex Court from time to time. In General Manager, Telecommunication v. Dr. Madan Mohan Pradhan and Ors. 1995 Su (4) SCC 268, the Hon''ble Apex Court has held that once possession has been taken, validity of notifications under Sections 4 and 6 can not be gone into. The pertinent observation made by Hon''ble Apex Court in para 3 of the judgement are extracted as under:
The crucial question that arises for consideration is whether the High Court was right and justified in interfering with the acquisition.... By operation of Section 17(1) even before award could be made, the Land Acquisition Officer is entitled to take possession of the land. He did so. The time mentioned in Section 9 stood expired by then. Even otherwise, award was made on 2-11.1976. By operation of Section 16 of the Act right, title and interest in the land vested in the Government absolutely free from all encumbrances. Thereby the Government became the absolute owner with effect from 12.4.1976. This Court in the case of Satendra Prasad Jain v. State of U.P. had held that once possession has been taken validity of the notification u/s 4(1) and declaration u/s 6 cannot be gone into and Section 11-A does not apply.
Similarly in Senjeevanagar Medical and Health Employees Co-operative Housing Society Vs. Mohd. Abdul Wahab and Others, also the Hon''ble Apex Court has taken the same view and held that once the possession of land is taken, the title of land is absolutely vested in the appropriate Government and the same can not be divested thereafter under the scheme of the Act. In such situation, the exercise of power to quash the notification u/s 4(1) and the declaration u/s 6 would lead to absurdity. The Hon''ble Apex Court has further held that under those circumstances, the High Court should not interfere with the acquisition and quash the notification and declaration under Sections 4 and 6 respectively. The pertinent observations made in para 12 of the decision are extracted as under:
...By operation of Section 16 the land stood vested in the State free from all encumbrances. In Satendra Parasad Jain v. State of U.P. the question arose: whether notification u/s 4(1) and the declaration u/s 6 get lapsed if the award is not made within two years as envisaged u/s 11-A? A Bench of three Judges had held that once possession was taken and the land vested in the Government, title to the land so vested in the State is subject only to determination of compensation and to pay the same to the owner. Divesting the title to the land statutorily vested in the Government and reverting the same to the owner is not contemplated under the Act. Only Section 48(1) gives power to withdraw from acquisition that too before possession is taken. That question did not arise in this case. The property under acquisition having been vested in the appellants, in the absence of any power under the Act to have the title of the appellants divested except by exercise of the power u/s 48(1), valid title cannot be defeated. The exercise of the power to quash the notification u/s 4(1) and the declaration u/s 6 would lead to incongruity. Therefore, the High Court under those circumstances should not have interfered with the acquisition and quashed the notification and declaration under Sections 4 and 6 respectively. Considered from either perspective, we are of the view that the High Court was wrong in allowing the writ appeal.
Again in State of Rajasthan and Others Vs. D.R. Laxmi and Others, , the Hon''ble Apex Court in para 7 of the decision has considered the question as to whether the absence of publication of substance of the notification in locality renders the entire proceeding void? And thereafter formulated further question as to whether in given facts and circumstances of the aforesaid case the notification u/s 4(1) and declaration made u/s 6 of the Act can be quashed? Thereafter, in para 9 of the decision Hon''ble Apex Court has held that once the award was passed and possession was taken consequently the land was vested in State, the High Court was not justified in interfering with the notification published under the appropriate provisions of the Act. The earlier decision rendered by Hon''ble Apex Court in Nutakki Sesharatanam Vs. Sub-Collector, Land Acquisition, Vijayawada and others, has been overruled and the decision in Madhya Pradesh Housing Board Vs. Mohd. Shafi and Others, , has been distinguished. In para 10 of the decision, it was further observed that the order or action, if ultra vires the power, becomes void and it does not confer any right, But the action need not necessarily be set at naught in all events. The pertinent observations made in para 7, 9 and 10 are extracted as under:
The question is whether the absence of the publication of the substance of the notification in the locality renders the entire proceedings void? We need not dilate upon the question whether local publication of substance of Section 4(1) notification is mandatory or directory. Since this Court has consistently taken the view that compliance of the requirement of the publication of the notification u/s 4(1) in the Gazette as well as publication of the substance of the notification in the locality now under the Amended Act in the newspaper, is mandatory requirement. As the facts are not in controversy, as mentioned in the judgment of the High Court, the substance of the notification was not published in the locality; we proceed on the premise that second step, namely, publication of the substance of the notification in the locality was not taken. The question then is whether Section 4(1) notification and Section 6 declaration are required to be quashed? In this regard, we have to consider the conduct of the parties and the effect thereof. Under the scheme of the Act after the possession of the lane was taken either u/s 17(2) or Section 16, the land vested in the State free from all encumbrances. Thereafter, there is no provision under the Act to divest the title which was validly vested in the State. u/s 48(1) before possession is taken, the State Government is empowered to withdraw from the acquisition by its publication in the Gazette. In this regard, a three-Judge Bench of this Court has considered the question in Senjeevanagar Medical & Health Employees'' Coop. Society v. Mohd. Abdul Wahab and held in para 12 thus:
quoted earlier.
...The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification u/s 4(1) and declaration u/s 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Singh Judge dismissing the writ petition on the ground of laches. Reliance was placed by Sri Sachar on M.P. Housing Board v. Mohd. Shafi, in particular para 8, wherein it was held that compliance of the requirements is mandatory and non-compliance thereof renders all subsequent proceedings connected therewith unexceptionable illegal; but the question is what will be its effect. That was not the question in that case, since no award had come to be passed. In Nutakki Sesharatanam v. Sub-Collector, Land Acquisition, a two-Judge Bench of this Court had held that if the requirements of Section 4 are not complied with, all proceedings had become invalid and possession was directed to be re-delivered to the appeal int. We are of the view that the ratio therein is not correctly laid down. The question whether violation of the mandatory provisions renders the result of the action as void or voidable has been succinctly considered in Administrative Law by H.W.R. Wade (7th Edn) at pp. 342-43 thus:
The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiffs lack of standing, because he does not deserve a discretionary remedy, because he has waived his right, or for some other legal reason, In any such case the ''void'' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time-limit expires after which its validity cannot be questioned The statute does not say that the void order shall be valid: but by cutting off legal remedies it produces that result.
The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court u/s 26 enhancing the compensation was also accepted. The order of appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification u/s 4(1) and declaration u/s 6.
In H.M. Kelogirao and Others Vs. Govt. of A.P. and Others, , the law enunciated by Hon''ble Apex Court in State of Rajasthan v. D.R. Laxmi has been reiterated again by taking note of earlier judgements relied upon in the aforesaid case and no other decision of Hon''ble Apex Court has been placed before us wherein Hon''ble Apex Court has detracted subsequently from the view taken in the case of State of Rajasthan and Ors. v. D.R. Laxmi and Ors. (supra). Therefore, in view of foregoing discussion, there can be no scope for doubt to hold that once the possession of land sought to be acquired is taken over by the Government, the land absolutely vest in the Government and there is no provision under the Act to revert back the ownership of the land, further after making the award, proceeding under the Act gets concluded and thereby terminated, thereafter it is not desirable for this Court in exercise of its discretionary jurisdiction under Article 226 to quash the notification u/s 4(1) and declaration u/s 6 of the Act, merely because the mandatory provisions of Section 4 and/or Section 6 were not observed. In such a situation, quashing of notification u/s 4 and declaration u/s 6 would lend to absurdity.
Now applying the law enunciated herein before in given facts and circumstances of the case, we find that in the supplementary counter affidavit it is stated that the possession of land in question has been taken over by the State Government and handed over to the Development Authority on 3rd April, 1992 and thereafter the award has also been made u/s 11 of the Act on 18th March 1994 by including the plots belonging to the petitioners. The petitioners could not dispute the aforesaid facts stated in the supplementary counter affidavit filed on behalf of the respondents No. 3 and 4, therefore, there can be no scope for doubt to hold that the title of plots in question is vested absolutely in the State Government free from all encumbrances and once the title of the petitioners land stood vested in the State Government free from all encumbrances, there is no provision under the Act under which it can be divested from the State. Thus, once the land acquisition proceeding is culminated to its logical end by making award and taking over the possession of the land, this Court would not be justified in quashing the notifications under Sections 4 and 6 of the Act in its discretionary writ jurisdiction under Article 226 of the Constitution.
In view of foregoing discussion, since the writ petition can be decided on limited question discussed herein before, therefore, we need nor to advert to the contentions of learned Counsel for the petitioners with regard to the validity of notifications u/s 4 and 6 of the Act inasmuch as the validity of application of provisions of Section 17(1) of the Act. Thus, in our considered opinion, writ petition is devoid of merits hence liable to be dismissed, therefore, the same is hereby dismissed. There shall be no order as to costs.