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Union of India Vs. Angrup Thakur - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberLetters Patent Appeal No. 8 of 1967
Judge
Reported inAIR1969Delhi279; 4(1968)DLT655
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rules 22, 27 and 27(1); Land Acquisition Act, 1894 - Sections 3, 4, 5-A, 6 and 55; Constitution of India - Articles 226, 227 and 258
AppellantUnion of India
RespondentAngrup Thakur
Appellant Advocate K.C. Pandit, Adv
Respondent Advocate Rajinder Sachar, Adv.
Cases ReferredJayantilal Amratlal v. F.N. Rana
Excerpt:
.....case, the general executive instructions issued by the financial commissioner in the state of punjab have such sanctity that failure to give notice to the department concerned must necessarily, and as matter of law, invalidate the order of acquisition, 12. in view of the notification under article 258 of the constitution reproduced earlier, we are constrained to allow this appeal, which we hereby do, but with no order as to costs......government for the purposes of the notifications under sections 4 and 6 of the act. the punjab government was, according to this averment, nto the appropriate government and the two notifications were, thereforee, unauthorised and a nullity.3. the learned single judge, after considering the unsatisfactory nature of the return, thought it necessary to go into the record which was made available by the learned counsel for the respondents and on perusal of those records lie came to the conclusion that a notice fixing 12-4-1965 for hearing the objections under section 5-a had been sent to and received by the writ petitioners who appeared before the collector on that date and made a joint statement signed by them. in that statement, they reiterated their objections filed by them.....
Judgment:

I.D. Dua, C.J.

1. This Letters Patent Appeal has been preferred, against the judgment of a learned Single Judge of this Court dismissing a petition under Articles 226 and 227 of the Constitution questioning the proceedings for the compulsory acquisition of the land measuring about 84 bighas and 11 bids was belonging to the writ petitioners, Shri Ang-rup Thakur and others, respondents in the present appeal. Notification under Section 4 of the Land Acquisition Act (hereafter called the Act) was issued in January, 1965 and under Section 6, in October, 1965. According to the notification under Section 4, it appeared 'to the Governor ocf Punjab that land was likely to be required to be taken by Government at the public expense for a public purpose, namely, for the construction of building and doing research work on vegetables' and in the notification under Section 6, the Governor of Punjab was stated to be satisfied that the land in question was needed by the Government at public expenses for a public purpose, namely for the construction of building and doing research work on vegetables at Indian Agricultural Research Institute, Vegetable Breeding Sub-Station Katrain (Kulu Valley)' and it was declared that the land in question was required for the above purposes. As is apparent, the Governor of Punjab was the author of both these notifications.

2. Objections under Section 5-A of the Act to the notification under Section 4 were presented by the writ petitioners and according to their averments in the writ petition, they were never called by the Collector, nor did they ever appear before him in connection with the hearing of those objections. The other objection pressed before the learned Single Judge was that the Indian Agricultural Research Institute Vegetable Breeding Sub-Station Katrain was owned and managed and run by the Government of India, with the result that the acquisition of land for the purposes of the said Institute must be the purposes of the Union and that under Section 3 (ee) of the Act, the Central Government was the appropriate Government for the purposes of the notifications under Sections 4 and 6 of the Act. The Punjab Government was, according to this averment, nto the appropriate Government and the two notifications were, thereforee, unauthorised and a nullity.

3. The learned Single Judge, after considering the unsatisfactory nature of the return, thought it necessary to go into the record which was made available by the learned counsel for the respondents and on perusal of those records lie came to the conclusion that a notice fixing 12-4-1965 for hearing the objections under Section 5-A had been sent to and received by the writ petitioners who appeared before the Collector on that date and made a joint statement signed by them. In that statement, they reiterated their objections filed by them under Section 5-A and also required the Collector to await the result of their representation made against the acquisition to the Minister concerned. But they did nto ask for any opportunity to lead evidence or to address further arguments. On this state of the record, the learned Single Judge held that the petitioners had been heard. Certain executive instructions relied upon by the learned counsel for the writ petitioners were held nto to amount to legally binding directions, the non-observance of which could have the effect of nullifying the order on the objections under Section 5-A.

4. On the second point that the Punjab Government was nto the appropriate Government for the notification under Section 6 of the Act, the writ petitioners' submission was accepted and the notification under Section 6 was quashed with costs.

5. On appeal, the learned counsel for the Union of India has applied under O. 41, Rule 27 of the Code of Civil Procedure, for being permitted to place on the record a copy of the Notification No. F. 26 (5)/67/J. Ii, dated 20-2-1957 (S. R. O. No. 645) which reads as under:

'In exercise of the powers conferred by Clause (i) of Art. 258 of the Constitution of India, the President hereby:

(1) Entrusts to the Government of Pun-jab with the consent of that Government the functions of the Central Government under the Land Acquisition Act, 1894 (1 of 1894) in relation to the Acquisition of Land for the purposes of the Union in the State of Punjab, subject to the condition that notwithstanding this entrustment, the Central Government may itself exercise the said functions should it deem fit to do so in any case; and

(2) Directs that the word 'Punjab shall be omitted from the notification of the Government of India in the Ministry of Home Affairs No. S. R. O. 1074 dated the 14th May, 1955.'

This notification, if admissible for this Court to consider, is a complete answer to the second challenge leveled by the writ petitioners to the validity of the acquisition in question.

6. Shri Sachar, the learned counsel for the respondents in this appeal has very strongly argued that there is no cogent ground for permitting this notification to be placed on the record on appeal and has added that Order 41, Rue 27, Civil P. C., is inapplicable to Letters Patent Appeals. He has sought support for excluding this notification under Order 41, Rule 27 from the following decisions :--

Parsotim Thakur v. Lal Mohar Thakur, Air 1931 Pc 143, Arjan Singh v. Kartar Singh, : [1951]2SCR258 Indrachand v. Bhagwandas, Air 1952 Nag 248, Venku Reddi v. Pichi Reddi, Air 1950 Andh Pra 250.

7. The objection raised by the respondents is, in our opinion, nto easy to sustain. Order 41, Rule 27, Civil P. C., may now be read :--

'R. 27, (1) The parties to an appeal shall nto be entitled to produce additional evidence whether oral or documentary, in the Appellate Court. But if--

(a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.'

This provision is couched in language which is wide enough to include within its fold an appeal from an order of a learned Single Judge made on an application under Article 226 of the Constitution. And then, except for the bald assertion, it has nto been shown why this provision should nto apply to the present appeal.

8. The next question to be considered is whether it is a fit case in which this notification should be admitted in evidence on appeal. As observed in K, Venkataramiah v. Seetharama Reddy, : [1964]2SCR35 : '**** 'the appellate Court has the power to allow additional evidence nto only if it requires such evidence 'to enable it to pronounce judgment but also for 'any other substantial cause'. There may well be cases where' 'even though the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannto strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it may pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence 'for any other substantial cause' under Rule 27 (1) (b) of the Code.'

9. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is nto likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in , the Privy Council while discussing whether additional evidence can be admitted observed :

'It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is nto whenever before the appeal is heard a party applied to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.'

As the Privy Council proceeded to point out:

'It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands'.'

But in the case in hand, the appellant does nto seek the production of evidence in the form of statements of witnesses or public or private documents which may require rebuttal. What is on the other hand sought to be produced on behalf of the appellant is an instrument whereby the President of India has, with the consent of the Government of Punjab, entrusted to the latter the functions or the Central Government under the Land Acquisition Act, in relation to the acquisition of land for the purposes of the Union in the State of Punjab. A document of this type, which purports to operate as a delegation of the executive functions of the Union to the Government of the State of Punjab, in our opinion, stands on a somewhat different footing from the evidence normally to be led by the parties in the form of private documents and the statements of witnesses. It may be pointed out at this stage that the respondents do nto claim to lead any evidence in rebuttal nor have they attempted to question the relevancy of this notification. In the interest of justice, thereforee, in the case in hand, this Court would be defeating the cause of justice if it declined to look at the Ministry of Home Affairs' notification reproduced above. We must point out that no other legal infirmity has been brought to our notice which would stand in the way of this Court in taking into account the contents of this notification. We, however, do feel that the appellant has nto exhibited the diligence expected from a responsible body like the Union of India having all the facilities of the best legal advice, with the result that it must be burdened with costs for this belated production of the notification which we fix at Its. 100.

10. This notification seems to us to clinch the point on which the learned Single Judge allowed the writ petition, and indeed the learned counsel for the respondents has said nothing on the merits on this point. The decision of the learned Single Judge on this point must, thereforee, be reversed.

11. Shri Sachar, has, as a last resort, attempted to re-agitate the objection unsuccessfully raised by him before the learned Single Judge and has with his usual eloquence submitted that his clients had nto been given hearing in support of the objections filed by them under Section 5-A of the Act. It is obvious that the learned counsel is, for this purpose, relying on Order 41, Rule 22, Civil P. C., which would nto be available to him if his earlier contention 'of excluding the applicability of Rule 27 of this Order to Letters Patent Appeals had prevailed, for, if Rule 27 is inapplicable, there would be no cogent ground for applying Rule 22 of the same Order, Shri Sachar has in support of his submission drawn our attention to An-nexure 'A-2', which embodies the objections raised by his clients under Section 5-A of the Act to the notification issued under Section 4 by the Governor of Punjab relating to the acquisition of the land in question and has then referred us to paragraphs 7 and 8 of the writ petition and the replies thereto. We are unable to agree with the learned counsel when he submits that the respondents before us (the writ petitioners) had nto been given a hearing on their objections under Section 5-A. As observed by the learned Single Judge, the writ petitioners appeared before the Collector on 12-4-1965 and made a joint statement which was also signed by them, in which they had requested the Collector to await the result of their representation made against the proposed acquisition to the Minister concerned. They do nto seem to have asked for any opportunity to lead evidence or to address further argument.

The learned counsel has nto been able to point out anything on the material before us which would suggest that the observations of the learned Single Judge are contrary to the record or in any way incorrect. Reference by Shri Sachar to a Bench decision of the Punjab High Court in Municipal Committee v. State of Punjab, , is of little avail to the learned counsel because the observations in paragraph 36 of that judgment, on which reliance has been placed, do nto seem to have any relevancy to the case before us either on its facts or on the law applicable. Shri Sachar has, however, repeated his submission on the authority of a Bench decision of the Kerala High Court in Lonappan v. Sub-Collector, Palghat, : AIR1959Ker343 , that the proceedings before the learned Collector were without jurisdiction because no notice had been given to the department concerned. In this connection, he has drawn our attention to certain instructions said to have been issued by the Financial Commissioner in the State of Punjab, according to which when the Collector receives an objection, he has to fix a date for hearing the same and to give notice of the date to the objector and to the officer of the department or the local body on whose application the notification under Section 4 of the Act had been issued. The learned Single Judge has in the impugned order observed that in the Kerala case, a statutory rule had been framed by the Government under Section 55 of the Land Acquisition Act, whereas the instructions issued by the Financial Commissioner in the State of Punjab being merely executive instructions, had no such sanction behind them, with the result that failure to give notice to the department concerned could nto have the effect of invalidating or nullifying the acquisition proceedings.

The learned Single Judge has also observed that the writ petitioners could, in any event, themselves have requested the Collector to issue notice to the department concerned and having nto done so, they could nto make a grievance of this omission in writ proceedings at such late stage. Precious little has been said before us to differ from the view taken by the learned Single Judge. We, however, do nto express any considered opinion on the correctness or otherwise of the view taken in the Kerala case. Suffice it to say that in the case in hand, no manifest injustice on the ground of failure to give notice to the officer o the department concerned has been shown to have been suffered by the writ petitioners. Our attention has also been drawn on behalf of the respondents to Jayantilal Amratlal v. F.N. Rana, : [1964]5SCR294 and particular emphasis has been laid on paragraph 18 of the judgment in which at p. 659, it is observed that:--

'This is nto to say that every order issued by an executive authority has the force of law. If the order is purely administrative or is nto issued in exercise of any statutory authority, it may nto have the force of law. But where a general order is issued even by an executive authority which confers power exercisable under a statute and which thereby in substance modifies or adds to the statute, such conferment of powers must be regarded as having the force of law.'

These observations, in our opinion, do nto support Shri Sachar's submission that in the present case, the general executive instructions issued by the Financial Commissioner In the State of Punjab have such sanctity that failure to give notice to the department concerned must necessarily, and as matter of law, invalidate the order of acquisition,

12. In view of the notification under Article 258 of the Constitution reproduced earlier, we are constrained to allow this appeal, which we hereby do, but with no order as to costs. Of course, the costs imposed on the appellant in connection with the admission of additional evidence will have to be paid to the respondents. The final result, thereforee is that the writ petition is dismissed with no costs.

13. Appeal allowed.


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