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Mohd. SwallehIn and ors. Vs. Lt. Governor and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 143 of 1969
Judge
Reported inAIR1977Delhi184; ILR1977Delhi387; 1977RLR415
ActsLand Acquisition Act, 1894 - Sections 4; General Clauses Act, 1897 - Sections 21
AppellantMohd. SwallehIn and ors.
RespondentLt. Governor and ors.
Advocates: Madan Bhatia,; Maehswar Dayal and; V.P. Nanda, Advs
Cases ReferredMunshi Lal v. Delhi Administration
Excerpt:
land acquisition act (1894) - sections 4, 5-a & 6--whether hearing of objections essential under section 5-a--general clauses act, section 21--whether gives power to rescind retrospectively--whether procedure for cancelling declaration under section 6 of the land acquisition act governed by section 21 of the general clauses act.; the respondent--union of india issued a notification under section 4 of the land acquisition act, in respect of the petitioners' lands. they filed objections under section 5-a. without hearing the petitioners, government issued a notification under section 6. they brought a writ petition against this action. realizing its mistake, government applied to the court that the acquisition proceedings subsequent to the notification under section 4 be quashed, but..........to appear on january 14, 1969 for the hearing of the objections. he relies on the fact that the gazette notification though published on january 15, 1969 is dated january 11, 1969. it is said that this shows that on january 11, 1969 itself the gazette notification of november 30, 1964 under s. 6 of the act stood cancelled and thereforee between january 11, 1969 and january 20, 1969 it was open to the government to do both the things-hear the petitioners on their objections under s. 5-a as well as issue a fresh declaration under s. 6 of the act.(10) in this connection january 20, 1969, is a significant date. under the land acquisition (amendment and validation) act 1967, the government had at its disposal a period of 2 years within which to issue a fresh notification under s. 6. that.....
Judgment:

Avadh Behari Rohatgi, J.

(1) On April 9, 1964, the respondent Union of India issued a notification under S. 4 of the Land Acquisition Act (the Act) in respect of the petitioners' lands situated in Malikpur Chhawani, Delhi, admeasuring 194 bighas-19 bids was comprising field Nos. 351, 352, 353, 354, 355, 356, 357, 358 and 359. On May 15, 1964, the petitioners filed objections under S. 5-A of the Act. Without hearing the petitioners on their objections the Government issued a notification under S. 5 on November 30, 1964.

(2) Aggrieved by this action of the Government the petitioners brought a writ petition on January 30, 1968 (C.W. No. 123 of 1968). Their main complaint in that case was that no notification under S. 6 of the Act could be issued without hearing them on their objections as required by the mandatory provisions of S. 5-A of the Act. The Government realised its mistake. Accordingly, on December 9, 1968, the Government made an application to the court (CM 2522- J of 1968). This application was styled as one under s. 151, Code of Civil Procedure. In this application it 'was conceded that 'no notice was issued to the petitioners for hearing of those objections and the mandatory provisions of S. 5-A of the Land Acquisition Act have not been complied with.' And that 'the acquisition proceedings subsequent . to the issue of S. 4 notification may be quashed. Since there is no defect in the notification dated April 9, 1964 under s. 4 of the Land Acquisition Act, the same may be kept intact.'

(3) This application came up for hearing before V. S. Deshpande, J. on January 10, 1969. He passed the following order:

'HEARD.The respondents can give a hearing to the petitioners under section 5-A of the Land' Acquisition Act, without waiting for the orders of the Court solicited by the application. In the meantime the respondents may file a return within a week, so that the case may be heard soon thereafter.'

(4) On the very next day, that is, January 11, 1969, the Land Acquisition Collector issued a notice to the petitioners requiring them to appear before him on January 14, 1969. This is what the notice said:

'YOUare hereby informed that the objections received in respect of acquisition of land for the above purpose will be heard on 14-1-1969 at 10 A.M. You may, thereforee. attend this office at the appointed time and date.'

(5) Now the case of the Government is that the three petitioners intentionally avoided the service of notice and thereforee notice was affixed on their last known residence on January 11, 1969 itself.

(6) On January 14, 1969, no one appeared on behalf of the pcti- tioners before the Collector. He submitted his report on January 14, 1969. He recommended that the objections of the petitioners dated May 15, 1964 may be dismissed. The report of the Collector, it is said, was placed before the Lt. Governor through Mr. R. C. Mathur.

(7) On January 15, 1969, a notification dated January 11, 1969, was published in the Official Gazette Extraordinary Part IV. It was captioned as a 'corrigenda'. There it was said that the petitioners' lands measuring 117 bighas--3 bids was out of the total area of 194 bighas- 19 bids was and bearing field Nos. 354, 355, 357, 358 and 359 arc 'hereby deleted'. The result of this notification was that the original notification dated November 30, 1964, under s. 6 stood cancelled in respect of the field numbers specified in the notification.

(8) On January 16, 1969, a fresh declaration was made under s. 6 comprising these very field numbers, namely, 354, 355, 357, 358 and 359 measuring 117 bighas-3 bids was of the petitioners' lands. This notification was actually published in the official gazette on January 18, 1969. The petitioner brought the present writ petition under Art. 226 and 227 of the Constitution on February 22, 1969, challenging the second declaration dated January 16, 1969 published on January 18, 1969. After they had brought the present writ petition they moved the court for the withdrawal of their earlier writ petition Cw 123 of 1968. That petition was dismissed as withdrawn on April 9,1969.

(9) Now the point of law for decision is this : Can the Government issue a notice for the hearing of the petitioners' objections under s. 5-A which they had filed on May 15, 1964 without informing them that the Government had decided to cancel the notification under s. 6 dated November 30, 1964 Mr. V. P. Nanda on behalf of the Government submits that it was open to the Government to cancel the notification dated November 30, 1964 under s. 6 on January 11, 1969 and to issue a notice on that very day to the petitioners calling upon them to appear on January 14, 1969 for the hearing of the objections. He relies on the fact that the gazette notification though published on January 15, 1969 is dated January 11, 1969. It is said that this shows that on January 11, 1969 itself the gazette notification of November 30, 1964 under s. 6 of the Act stood cancelled and thereforee between January 11, 1969 and January 20, 1969 it was open to the Government to do both the things-hear the petitioners on their objections under s. 5-A as well as issue a fresh declaration under s. 6 of the Act.

(10) In this connection January 20, 1969, is a significant date. Under the Land Acquisition (Amendment and Validation) Act 1967, the Government had at its disposal a period of 2 years within which to issue a fresh notification under s. 6. That period began with the ordinance which was promulgated on January 20, 1967 and ended on January 20, 1969. This explains the undue haste and the anxiety of the Government to do everything within the short time at its disposal. Between January Ii and January 20 there were not many days. thereforee, on January Ii, 1969, the notification under s. 6 was cancelled and notice for hearing of objections under s. 5-A was issued.

(11) In my opinion, these proceedings are clearly invalid. The reason is plain. It is true that the notification under s. 6 was cancelled. But that notification was published in the gazette on January 15, 1969. Till then the petitioners did not know that their lands had been denotified. Until they were so informed they were not supposed to appear before the Land Acquisition Collector, assuming that they were duly served by affixation of notice at their residence as has been contended. Whoever has heard of a hearing after the notification under s. 6 'Is it a snare or a delusion' one would ask oneself in an intriguing situation such as this.

(12) The notification cancelling S. 6 declaration must appear first in the gazette. Then the Government can give an opportunity to the petitioners. This ought to have been the right order of things and the correct sequence of time.

(13) Mr. Nanda says that notification under s. 6 of November 30, 1964, was cancelled on January Ii, 1969 and this is the point of time when the land stood released from the Government notification made in 1964. I cannot accept this submission. The petitioners came to know of the cancellation of the notification under s. 6 dated November 30, 1964 only after its publication in the gazette on January 15, 1969. The conclusion thereforee is that the hearing said to have been given under s. 5-A was no hearing in the eye of law. It must thereforee necessarily follow that the fresh notification issued on January 16, 1969 under s. 6 was invalid. The fact remains that there is no notification today under s. 6 which can be said to be valid.

(14) S. 6(2) of the Act requires that every declaration under that section shall be published in the official gazette. Now the Government wanted to rescind its earlier notification dated November 30, 1964 because of its invalidity. They could do it in the like manner, namely, by issuing a notification in the official gazette. Clearly they had the power. The power to issue a notification includes the power to rescind it. S. 21 of the General Clauses Act provides it in explicit terms. But this power does not include a power to rescind the notification with retrospective effect. S. 21 does not say expressly or by necessary implication that the power can be exercised with retrospective effect.

(15) The dates are important. The Government in this case issued the notification dated January 11, 1969 which was published in the gazette on January 15, 1969 under the powers conferred by S. 21 General Clauses Act. But that notification for obvious reasons cannot have effect from January 11, 1969. It will have effect from January 15, 1969, the date of its publication. (See State of M. P. v. Vishnu Pershad Sharma : : [1966]3SCR557 ). Cancellation was in recognition of the invalidity of the earlier notification. But cancellation came to the knowledge of the petitioners when it was published in the gazette and not before that.

(16) Take a case of amendment of a rule. The amendment will have effect from the date of publication and not from any other date. The same is the case here.

(17) The publication in the gazette was made on January 15, 1969. The hearing for objections under s. 5-A was fixed by the Collector on January 14, 1969. This has resulted in plain injustice. The whole proceeding smacks of a pretence and an idle formality. The object of the legislature in enacting S. 5-A is to give to the owner of the land proposed to be acquired an opportunity to put forward their objections to the proposed acquisition. Provisions of S. 5-A are mandatory and a declaration made under s. 6 without compliance with the provisions of S. 5-A is invalid. I would in the circumstances of this case hold that there was a denial of opportunity and non-compliance of the provisions of S. 5-A. This conclusion appears to me inescapable.

(18) Mr. Nanda submits that it was not necessary for the Government to communicate to the petitioners the cancellation of the earlier notification under s. 6 as it was made known to them by the application dated December 9, 1968 moved in the earlier writ proceedings and the order dated January 10, 1969 shows it. I do not agree. There is nothing in the application dated December 9, 1968 and the order of V. S. Deshpande, J. dated January 10, 1969 which would show that the Government had in their contemplation the cancellation of the earlier notification and the issuance of a fresh notification under s. 6 of the Act. The application only conceded the claim of the petitioners. But it gave no idea, not even a hint of what the Government was contemplating in future. The order of Deshpande, J. said noticing on this point. He merely allowed the Government to give an opportunity to the petitioners under s. 5-A if they so wished.

(19) The procedure for cancellation of the declaration under s. 6 is governed by S. 21 of the General Clauses Act, as I have said. That procedure is obligatory. The application and the order of Deshpande, J. did not dispense with that procedure.

(20) Counsel referred me to a decision of Prakash Narain, J. in Munshi Lal v. Delhi Administration, (C.W. No. 433-D of 1961 decided on December 10, 1970) (2). That was a case under s. 48 of the Act. There Mr. Dharam Vira, the then Chief Commissioner made an G order under s. 48 releasing the petitioner's land. His successor Mr. Vishwanathan decided not to release the land. The learned judge held that an order having once been made under s. 48 of the Act and communicated to the petitioner it was not open to the successive Chief Commissioner to revise or reverse that decision and to revive the acquisition proceedings. That case in my opinion has nothing to do with the point involved in the present writ petition the decision of which turns on the validity of the cancellation of the notification under s. 6 of the Act.

(21) For these reasons I would allow the writ petition with costs.Counsel's fee Rs. 200.


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