1. This appeal from order has been referred to a larger bench by our learned brother J. P. Desai, J. by a referring order dated 29-8-1984/4-9-1984 as according to the learned Judge, various important questions are required to be resolved by a larger bench. That is how the appeal from order has been placed before this bench for final disposal.
2. * * * * * *
I. Factual backdrops : - The dispute in the present proceedings centres round possession of erstwhile survey number 196 of the then village Vasna in Ahmedabad city taluka which has been given final plot No. 603 under the town planning scheme No. 21 - Vasna and it admeasures 2 acres 38 gunthas. The Government of Gujarat in exercise of its powers under the provisions of Sections 4 and 6 of the Land Acquisition Act, 1894, (hereinafter referred to as 'the Act') proposed to acquire the aforesaid land for the purpose of constructing houses for a co-operative society viz. Sanyojan Co-operative Housing Society Limited. The said society is the appellant before us. The notification under section 4 to the aforesaid effect was issued on 1-9-1964 and was published in the Government Gazette on 10-9-1964. Thereafter, the Collector issued notices to the interested parties on 17-9-1964 inviting objections against the proposed acquisition to be filed on or before 29-10-1964. The owner-occupier of the land in question was one Husseinmiya Imam Haider Bux Razvi while it was in actual possession of one Govindbhai Prabhudas who was the tenant of the said land. Govindbhai Prabhudas is the predecessor in interest of the present respondents Nos. 1 to 6. Respondent No.1 is his widow while respondents Nos. 2 to 6 are his children. The said Govindbhai did not file objections within the period specified in the notice dated 17-9-1964 but filed his objections on 5-12-1964. Thus, the objections filed by Govindbhai were ex facie time barred being beyond 30 days of the issuance of the notification under S. 4 of the Act. Consequently those time barred objections filed by him were not considered by the Collector. He, however, considered the objections filed in time by the owner of the land viz. Husseinmiya Razvi and then submitted his report under section 5A of the Act. The State of Gujarat having considered the report issued a notification under S. 6 of the Act on 24-2-1965 deciding to acquire the land in question for the purpose of the appellant-society. After issuance of section 6 notification as aforesaid, further proceedings were initiated by the Collector and the land acquisition officer for determining the market value of the land. For that purpose, notices under section 9 were issued to the concerned parties on 7-5-1965. In the meanwhile, the owner of the land viz. Husseinmiya filed a writ petition being special civil application No. 635 of 1965 in this court under Art. 226 of the Constitution and obtained stay of further proceedings in the matter. The petition challenged the legality of the acquisition proceedings pursuant to the notifications under sections 4 and 6 of the Act. It appears that the contention of the petitioner- Husseinmiya was that the land could not be acquired for the purpose of a cooperative housing society and it would not be a public purpose. The said contention of the owner of the land was upheld by this Court. The writ petition was accordingly allowed and the notifications were quashed and set aside. The State, however, carried the matter to the Supreme Court by special leave being civil appeal No. 263 of 1972. The Supreme Court in April 1976 allowed the appeal of the State and held that the acquisition was for a public purpose and repelled the challenge mounted by the owner of the land against the impugned acquisition and dismissed the writ petition filed by Husseinmiya Razvi challenging the concerned notifications under sections 4 and 6 of the Act, Thereafter, the proceedings lingered on before the land acquisition officer for declaring award after hearing the concerned claimants on the question of proper compensation to be paid for acquisition of the land. Ultimately, the land acquisition officer declared the award on 15-5-1982 more than six years after the date of the decision of the Supreme Court upholding the acquisition proceedings. During the pendency of the State appeal before the Supreme Court against this Court's judgment in Husseinmiya's writ petition, original tenant Govindbhai expired on 4-4-1972.
3. Now resuming the thread of proceedings from the stage of declaration of the award onwards, the Collector and land acquisition officer issued notification under section 12(2) of the Act within a couple of days after declaration of the award. Thereafter notices under section 16 of the Act were also issued calling upon the persons in possession of the land to hand over possession to the Collector as per the award. That notice was issued on 22-6-1982. However, the respondents who were in possession of the land as heirs and legal representatives of deceased tenant Govindbhai did not hand over possession of the land in response to the said notice and did not remain present on land for delivery of possession in compliance with the said notice. It was proposed to have recourse to section 47A of the Act to take possession by force with the assistance of the Police Commissioner. Notices were accordingly issued to the interested parties intimating them that as they did not remain present for handing over possession in spite of the notices, it was proposed to take possession by force in exercise of the powers conferred by section 47A of the Act. This notice was issued on 8-7-1982. Notice about the proposed action. under Section 47A was accepted by one of the heirs of Govindbhai. Now, it may be mentioned at this stage that before the service of notice in July 1982 under section 47A of the Act on one of the heirs of Govindbhai, the heirs of Govindbhai, the present respondents, gave a notice to the State under S. 80 of the Code of Civil Procedure on 20-5-1982 raising various contentions regarding validity and legality of the award and intimating that they proposed to file a civil suit to challenge the award. Thereafter, the respondents filed a suit in the City Civil Court on 14-7-1982 even though the period of 60 days as provided by section 80 of the Code of Civil Procedure was not over. The said suit was withdrawn as being premature and thereafter the present suit out of which this appeal from order arises was filed on 25-8-1982 by the respondents-plaintiffs. The suit is civil suit No. 3062 of 1982 and it is pending in the City Civil Court at Ahmedabad. In the said suit, the respondents joined as defendant
State of Gujarat but did not join the present appellant-society for whose, benefit the land is prayed for permanent injunction restraining the State of Gujarat from taking over possession of the suit land from them in execution of the said award. They also moved an application for interim injunction to restrain the State Government from taking over possession during the pendency of the suit. Ad interim relief was granted by the trial Court and a show cause notice was issued to the State Government why the rule should not be made absolute. In the meanwhile, the appellant-society filed an application before the trial Court requesting it to permit the appellant to be made a party-defendant in the suit as it was interested as an acquiring body. The said application though opposed by the respondents-plaintiffs was ultimately granted. Thus, the appellant was joined as defendant No. 2 in the suit. Ultimately, after hearing the State of Gujarat and the appellant, the trial Court made the rule as to interim injunction absolute by its order dated 27-3-1984. It is this order which was been brought in challenge by the appellant society by way of the present appeal.
II. Main questions for consideration :- Now is the time for us to have a look at the main questions of law which have been referred for their resolution by J. P. Desai, J. to a larger bench. They are mentioned at page 41 of the referring judgment and they read as under : -
(1) Whether a party, who does not challenge the notification under section 6 before the passing of the award, is entitled to challenge the same while challenging the award.
(2) Whether a party, who does not challenge the notification but challenges the award on the ground that notification under S. 6 was issued without undergoing the formalities and requirements of section 5A, is required to seek a declaration in respect of the illegality or invalidity of the notification under section 6 of the Act while challenging the award of whether it can only be made a ground for challenging the award?
(3) If a suit challenging the award is filed within the prescribed period of limitation so far as the award is concerned, but beyond the period of limitation during which the suit ought to have been filed to challenge the notification under section 6, whether the suit challenging the award will be barred by limitation so far as the ground based on invalidity of the notification under section 6 of -the Act is concerned?
(4) Whether a party is entitled to be heard as of right in respect of the objections filed after the expiry of the period of 30 days? If yes, when and in what circumstances?
(5) Whether the bar created by section 47A of the Act can be pleaded in a suit where the challenge is not only to the proceedings under section 47A of the Act but also to the legality of the award?
It may be stated that though the learned Judge has framed the aforesaid five questions of law for consideration of the larger bench, the entire appeal from order has also been referred for decision to the larger bench. We, therefore, propose to deal with these questions of law and to dispose of the appeal from order itself in the light of the conclusions reached on these questions.
4. Question No. 1.- So far as this question is concerned, its answer can be given in the light of the relevant statutory scheme. Proposal to acquire any given land under the provisions of the Act gets initiated by publication of preliminary notification under section 4 of the Act. It is now well settled that such preliminary notification under section 4 is exploratory in character and embodies merely the proposal of the appropriate Government regarding acquisition of the concerned land. Section 4 notification provides for initial stage of procedure which is to be followed in land acquisition proceedings. It is the first stage in the acquisition proceedings. It is merely a preliminary notification as indicated by section 4 itself. Issuance of such notification makes it lawful for the concerned officer to enter upon and survey and take leaving of, the land in question and to do other preliminary investigations as laid down in section 4. The mode and manner of the preliminaries is provided by section 4(1). Thereafter follows an important stage of hearing objections against the proposed acquisition as per section 5A of the Act, if this procedure is not dispensed with under section 17(l) read with section 17(4) in cases of urgency. After the objections duly filed under section 5A are heard by the Collector and he makes a report on these objections to the appropriate Government, the appropriate Government after considering the report under section 5A, if satisfied that the land is needed for a public purpose, get empowered to issue declaration to that effect under section 6 of the Act. It is thereafter that the gamut regarding fixation of proper compensation is required to be resorted to. For that purpose, notices are to be issued under section 9 of the Act to the interested parties followed by inquiry by the Collector into objections centering round claims for compensation as put forward by the interested persons and ultimately, the award has to be passed by the Collector offering compensation amount for extinguishment of the concerned interest in the land. The declaration of the award is to be made as laid down by section 12(2) of the Act and as per sub-section (1) thereof, it attains finality except to the extent provided in the Act. Then follows section 16 which empowers the Collector who has made award under section 11, to take possession of the land which thereupon gets vested absolutely, in the Government free from all encumbrances. The limited scope for challenging the award is laid down by section 18 of the Act wherein the interested person can claim reference to the Court for enhanced compensation.
5. In the light of the aforesaid statutory scheme, it is obvious that once notification under S. 6 is issued, preliminary intention of' the appropriate Government to acquire the concerned land gets crystalised and a firm declaration comes to be made under section 6. If a person has to challenge such notification, normally he is expected to challenge the same as soon as possible as such notification under section 6 definitely poses a threat to his title which is likely to be divested if subsequent and consequential proceedings are allowed to go on up to their logical culmination in the stage of section 16. However, in a given case a person holding interest in the land whether as an owner or as a tenant or having any limited interest may wait till the real threat to his title and possession gets fructified that is - once the award is declared and possession is likely to be taken under section 16 on the declaration of such award. As already seen earlier, such an eventuality can arise and such latitude may be available to the concerned party only if urgency clause is not resorted to under section 17(l) read with section 17(4) as in such a case, possession can be taken by the acquiring authority without waiting for the gamut of completion of inquiry under section 11 and declaration of the award under section 12. But on the facts of the present case, no urgency clause was ever applied. Consequently, full gamut of proceedings up to sections 12 and 16 had to be gone through by the concerned authority. In these circumstances, if the plaintiffs have waited beyond issuance of section 6 notification for some time for challenging the ultimate award under section 12, subject to their challenge being in accordance with law and within time provided by the Act, their challenge, if any, to the award cannot be per se said to be unauthorised or not maintainable at law. It can legitimately be alleged by the person interested in the land that so long as his possession is not disturbed and his title is not under immediate threat of being divested, he was not compelled to rush to the Court for obtaining proper reliefs though it would be highly inprudent on his part to wait till the last moment as by that time, either the period of limitation may expire or number of other complications may arise and he may be required to hush up and rush up. But that aspect apart, strictly speaking, it cannot be said that a party who has not challenged the notification under section 6 before passing of the award cannot challenge the said notification on legally permissible grounds by combining the challenge along with challenge to the award. The first question, therefore, has to be answered in the affirmative subject to a rider which will become evident from the consideration of question No. 3. In fact, question No. 3 is directly linked up with question No. 1 and one cannot be answered without reference to the other. We, therefore now refer to the controversy involved in question No. 3.
Question No. 3 : - Now, a mere reading of the said question indicates that if in a suit challenge to the award is within time but the challenge to the notification under section 6 is beyond time, such a challenge to section 6 notification ex facie cannot be entertained as the challenge would be time barred. It is obvious that challenge which is time barred cannot be entertained by a court of law. Section 3 of the Limitation Act prohibits inquiry into such challenges. Notification under section 6 of the Act has to be challenged by way of a declaratory suit within the time permissible under the Limitation Act as laid down by s6ction 3(l) of the Limitation Act. It provides that :-
'(1) Subject, to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.'
When we turn to the schedule to the Limitation Act, we find that Part III of the Schedule deals with the suit relating to declaration. Article 58 is a residuary article in that part which prescribes the period of three years from the date when the right to sue first accrues if any other declaration has to be obtained from the civil court. The other articles of this part do not cover cases like the present ones. It is, therefore, obvious that even if a party stands by and does not challenge the notification under section 6 of the Act till the award is passed and a serious threat to the disturbance of title and possession ensues pursuant to the award, he cannot combine in the civil action challenging the award, the challenge to the notification under section 6 if three years by then have elapsed from the date of issuance of notification under section 6 as with the issuance of such notification, right to sue for a declaration in connection therewith would first accrue. Such challenge to notification under S. 6 even if combined with the challenge to the award would get excluded as time barred and the suit would remain effective and operative qua only the legally permissible challenge to the award, meaning thereby, about fixation of proper compensation for whatever is the worth of such challenge as challenge to the award independent of permissible challenge to Section 6 notification would be otiose and meaningless as such a challenge can be made only under Section 18 of the Act by way of seeking a reference to the district court. Thus, any challenge to the award independent of challenge to section 6 notification would be practically otiose and ineffective and in a way impermissible as laid down by section 12(l) and consequently in order to make such a challenge effective before a civil court, it has to be clubbed with proper' challenge to section 6 notification so that in appropriate, cases losing of possession and divesting of title under section. 16 can be effectively avoided, but if such a challenge to section 6 notification is time barred by the date of filing of the suit, entire exercise would be an abortive exercise. Consequently, the third question will have to be answered in the affirmative. Thus, answer to question No.1will be in the affirmative subject to the rider that challenge to section 6 notification should not have become time barred under the Limitation Act. Before parting with the discussion on the aforesaid questions Nos. 1 and 3, we must mention one contention strongly pressed for our consideration by Mr. S. R. Shah for the respondents-plaintiffs. He submitted that in case the declaration under section 6 is a nullity, the plaintiffs are entitled to ignore such nullity and can set up nullity of such a declaration at any time in any proceedings. He submitted that in the present case, the respondents contend that the declaration under section 6 is a nullity as deceased Govindbhai was not given any personal hearing by the Collector on his objections filed under section 5A. This amounted to non-compliance with the statutory provisions of section 5A and consequently, appropriate Government had no power or jurisdiction to issue section 6 notification. Hence, the said notification is null and void and this nullity can be set up at any time without any inhibition of the Limitation Act. In support of his contention, he heavily leaned on a decision of the Supreme Court in the case of Kiran Singh v. Chaman Paswan : 1SCR117 , wherein the Supreme Court made the following observations : -
'It is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.'
He also relied upon a decision of the Kerala High Court in the case of Lonappan. v. Sub-Collector, Palghat : AIR1959Ker343 which has taken the view that non-compliance with the provisions of section 5A of the Act would make subsequent notification under section 6 one without jurisdiction. He also relied upon a decision of our learned brother N. H. Bhatt, J. in second appeal No. 267 of 1977 decided on 28-1-1983 wherein the learned Judge has observed that ultra vires orders can be challenged at any time. Now, it is true that as per the settled legal position, null and void orders create no right or obligation and such nullities can be demonstrated in any proceedings and even in collateral proceedings. But the moot question which survives is even if a null and void order is tried to be avoided by the concerned party by taking recourse to proceedings in a court for getting such null and void order avoided, whether usual period of limitation would not be required to be complied with. We would have been required to go into this question but for the fact that on the case as set up by the plaintiffs in their plaint and even taking their allegations in the plaint to be true on their face value and on demurer, it cannot be said that what they have pleaded reflects a challenge to the section 6 notification on the ground that it is a nullity. All that, the plaintiffs have stated in para 3 of their plaint in this connection is that section 4 notice was served on the deceased Govindbhai who was the husband of plaintiff No.1 and father of plaintiffs Nos. 2 to 6 and that said Govindbhai had also filed his objections but the officer of the defendant-State had not given any personal hearing as per sections 5 and 5A to said Govindbhai or to the plaintiffs and as such, the proceedings were contrary to the principles of natural justice. It is also alleged that section 4 notice was also not served on spot. Now, a mere look at the averments in the plaint shows that contention regarding non-affixing of notice on spot under Section 4 pales into insignificance as according to the plaintiffs themselves, Govindbhai, their predecessor-in-interest had already filed his objections and he was in know of the acquisition proceedings and issuance of Section 4 notification. So far as alleged non-hearing of Govindbhai by the land acquisition officer is concerned, it is the plaintiffs case that he had filed his objections but they were not heard. It is not the case of the plaintiffs respondents that Collector had not followed the procedure of section 5A and had not given any opportunity to Govindbhai to file his objections. Now, as per Section 5A of the Act, objections have to be filed within 30 days of issuance of notification under Section 6 and if such objections are filed within 30 days, the Collector is enjoined to give a personal hearing to the objector and to hold an inquiry in connection with the objections. If such objections are filed beyond time, no such obligation of inquiry and hearing into the objections could even survive for consideration as we will show while discuss if question No. 4. In the light of the admitted facts on record, objections filed by Govindbhai were beyond time and hence the Collector was under no obligation to hear him. But even that apart, taking all the averments in para 3 of the plaint to be true, and even assuming that Govindbhai had filed his objections within time, even then the notification under Section 6 is not rendered a nullity merely because Govindbhai was not given personal hearing on his objections as it is now well settled that right of personal hearing can be waived by the person concerned. In a Full Bench decision of this Court in the case of Dungarlal v. State : AIR1977Guj23 , the Full Bench consisting of S. Obul Reddi C. J. and J. B. Mehta, J., (as they then were) and B. K. Mehta, J., laid down the test to determine as to what is an irregularity and what is a nullity. S. Obul Reddi, C. J. speaking for the Full Bench has made the following pertinent observations in para 16 of the report in this connection : -
'Whether breach of a mandatory provision is an irregularity or nullity depends upon the facts of each case and no hard and fast line can be drawn between a nullity and an irregularity.'
In the said para 16, reliance is placed on a decision of the Supreme Court and other decisions and it has been observed as under : -
'Subba Rao, J. as he then was, in Dhirendra Nath v. Sudhir Chandra : 6SCR1001 laid down the test to determine what is an irregularity and what is a nullity. In the words of the learned Judge-
'The safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity. A waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived for consent cannot give a court jurisdiction where there is none. Where such jurisdiction is not wanting a directory provision can be waived. But a mandatory provision can only be waived if it is not conceived in the public interest but in the interest of the party that waives it'.
In that case the learned Judge approved what Mookerjee, J. said in Ashutosh Sikdar v. Bebari Lal Kirtania (1908) ILR 35 Cal 61 p. 72 and Justice Coleridge said in Holmes v. Russell (1841) 9 Dowl. 487. Mookerjee, J. in Ashutosh Sikdar's case observed -
'...no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without' any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated'.
Justice Coleridge in Holmes v. Russell, put it very clearly
'It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a, nullity is to see whether the party can waive the objection, if he can waive it, it amounts to an irregularity, if he cannot, it is a nullity.'
In view of the aforesaid settled legal position, it is obvious that if any alleged irregularity is such which can be waived by a party, from the mere irregularity alleged, it cannot be concluded that the resultant action is rendered null and void. Objection about alleged non-hearing of party is not of such type which affects the competence or jurisdiction of the authority for taking a decision one way or the other. Competence or jurisdiction flows from the statutory settings. Procedural requirement of hearing a party would remain of course a mandatory procedure but a mere alleged breach of such procedure would not necessarily result into ultimate decision being declared as a nullity if the irregularity is capable of being waived. In a properly constituted proceedings if the challenge to the effect that the resultant action was rendered without following the mandatory procedure of hearing a party succeeds on the proof of the fact that concerned party had not waived its right of hearing, the action may be set aside but that does not mean that on a mere allegation of no, hearing being given to a party, the resultant action must be treated as a nullity or a void action from its inception so that the concerned party can blissfully ignore such order till eternity as a sheer nullity creating no rights and obligations. As alleged by the plaintiffs themselves in the plaint, Govindbhai had submitted his objections. Now, thereafter, whether he was given personal hearing or not would depend upon many factors. He might not have remained present even though called for personal hearing or he might not have been called for personal hearing at all as is the factual position in the present case as will be noticed hereafter. Collector might not have given personal hearing to an objecting party because its objections were time barred or the Collector might have failed to discharge his statutory obligation of giving personal hearing to a party entitled to such hearing. On proof of later fact only the action of the Collector can be set aside as irregular in a properly constituted proceedings. In the present case, taking all the allegations in para 3 of the plaint at their face value as representing a gospel truth, it cannot be said that merely because Govindbhai was not personally heard by the Collector, subsequent declaration under Section 6 would without anything more be rendered null and void, This is obvious as the right of hearing even though statutorily granted was capable of being waived by Govindbhai, even apart from the question whether such a right ever inhered in him. Consequently, it must be held, in the light of the allegations in the plaint in the present case, that declaration under section 6 on the alleged irregularities cannot be said to be a null and void declaration which could have been ignored by the plaintiffs for all times to come and which could have permitted them to slumber on and allow period of limitation for challenging such declaration to elapse. Consequently, on the averments in the plaint in the present case, it cannot be said that the alleged procedural irregularity in the declaration under section 6 can be treated to be a nullity from any angle and hence, it must be held that challenge to such declaration being barred by limitation cannot be effectively clubbed with the challenge to the award as is done by the plaintiffs in the present case. Questions Nos.1 and 3 will stand answered accordingly.
Question No. 2 : - So far as this question is concerned, it is obvious that if the party wants to challenge the notification under section 6 on any legally permissible ground, he cannot avoid seeking proper declaration to that effect by paying requisite court fees. By merely making it a ground for challenging the ultimate award, the party cannot be permitted to directly get benefit which it cannot directly get as it has not challenged the .notificafi6n by seeking proper declaration. It is obvious that such circuitous course has to be adopted by the party because directly such a challenge to section 6 notification would be barred by limitation. That which is not legally permissible directly cannot 15 be permitted to be done indirectly, by back door. Question No. 2 will, therefore, have to be answered by holding that even though there is composite challenge to section 6 notification along with the challenge to award under section 11 and even if such composite challenge is within the period of limitation for mounting these challenges, both the challenges have to be separately made and proper reliefs have to be prayed for in the plaint. By merely making ground for challenging award, challenge, to section 6 cannot be brought in by back door as, if it is allowed, it would amount to circumventing the provisions of the Limitation Act and Court-fees Act so far as challenge to section 6 notification goes. However, Mr. Shah for the plaintiffs-respondents vehemently contended that if the declaration under section 6 is challenged on the ground. that. it is a nullity, it is not required to be set aside and, therefore, a separate prayer by way of challenge to such notification is not required to be made and it can instead be made a ground for challenging the ultimate award. Even this contention cannot stand in good stead to Mr. Shah for the respondents for the simple reason that on the pleadings and the averments in the plaint, attack on section 6 notification is not of that high pitch which can render notification under section 6 a nullity. The same reasoning which we have adopted for considering this aspect while answering question No. 3 will ipso facto apply at this stage for answering question No. 2. As the challenge to section 6 notification on the averments in the plaint even if assumed to be valid does not render the resultant notification a nullity, the challenge has to be mounted within the legally permissible time and once such challenge is not mounted and is out of reach of the court, it cannot be brought in by side-wind by making it a ground for attacking the award. Question No. 2 will have to be answered accordingly. That takes us to consideration of question No. 4.
Question No. 4. In order to answer this question, a close look at the relevant provisions of the Act becomes at once necessary. Section 5A of the Act reads as under : -
'(1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1) or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would he entitled to claim an interest in compensation if the land were acquired under this Act'.
We may now turn to section 55 of the Act which lays down as under : -
'(1) The appropriate Government shall have power to make rules consistent with this Act for the guidance of officers in all matters connected with its enforcement, and may from time to time alter and add to the rules so made:
Provided that the power to make rules for carrying out the purposes of Part VII of this Act shall be exercisable by the Central Government and such rules may be made for the guidance of the State Governments and the officers of the Central Government and of the State Governments:
Provided further that every such rule made by the Central Government shall be laid as soon as may be after it is made, before each House of Parliament while it is in session of for a total period of thirty days which may be comprised in one session or two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case maybe; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
(2) The power to make, alter and add to rules under sub-section (1) shall be subject to the condition of the rules being made, altered or added to after previous publication.
(3) All such rules, alterations and additions shall be published in the Official Gazette, and shall thereupon have the force of law'.
A combined reading of these provisions indicates that objections have to be lodged within 30 days after issuance of notification under section 4 by the concerned objector. Section 5A has undergone amendment in 1984 by which 30 days' period has now to be computed after publication of the notification under section 4. But so far as the facts of the present case are concerned, as the said notification under section 4 was issued years back in l964. 30 days' period was to be counted after issuance of the notification under section 4, it is obvious that appropriate Government which has power to make rules for guidance of the officers in all matters connected with enforcement of the Act cannot make any rule which is not consistent with the Act. As statutory provisions puts a ceiling of 30 days after issuance of the notification for lodging of objections, by no process of rule making, the said period can be enlarged by the rule making authority. If this is so done, the concerned rule would be liable to be struck down as being inconsistent with the Act. With this background, we may turn to the relevant rules as framed by the then State of Bombay and which have been continued by the State of Gujarat to serve as rules for guidance of the land acquisition authorities acting under the Act. Rules 1 and 2 framed by the then State of Bombay under notification No. 9173, R. D. dated 4-10-1926 and which are admittedly in force even till today read as under : -
' 1. Whenever any notification under section 4 of the Act has been published but the provisions of section 17 have not been applied and, the Collector has under the provisions of section 4(1) issued notices to the parties interested; and or before the last day fixed by, the Collector in those notices in this behalf any objection is lodged under section 5A(2), firstly, the Collector shall record the objections in his proceedings, Secondly, the Co1lector, shall consider whether the objection is admissible according to these rules.
2. To be admissible (a) an objection must be presented in writing by a party interested in the notified land and must be presented within thirty days after the date of publication of the notification under section 4 or within such period as may be fixed by the Collector; (b) it must allege some specific objections, such as these :
(i) the notified purpose is not genuinely or properly a public purpose ;
(ii) the land notified is not suitable for the purpose for which it is notified.
(iii) the land is not so well suited as other land;
(iv) the area proposed is excessive;
(v) the objector's land has been selected maliciously or vexatiously;
(vi) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort; will take away important public rights of way or other convenience or will desecrate religious buildings, graveyards and the like'.
So far as rule 1 is concerned, it merely indicates that objections have to be lodged under section 5A(2) on or before the last day before the Collector who has issued notice to the party interested. The said rule nowhere provides that the Collector can fix a larger period for calling for objections than the one as fixed by the legislature as the ceiling indicated in section 5A of the Act. Thus, rule 1 when read harmoniously with rule 5A, can only mean that the Collector can indicate in the notice under section 4(l) time for filing objections which may run in harmony with the ceiling of time as permitted by section 5A of the Act viz. 30 days after the date of the issuance of the notification. So far as rule 2 is concerned, it is true that it provides that objection under section 5A(2) to be admissible should be presented in writing by the party interested in the notified land and must be presented within 30 days after publication of the notification under section 4 or within such period as may be fixed by the Collector. However, the play available to the Collector to fix any period for receiving objections cannot, of necessity, travel beyond the upper limit or ceiling of 30 days from the date of issuance of notification as laid down by section 5A. If it is suggested that rule 2 enables the Collector to give larger period for receiving objections under Section 5A(2) than the one as indicated by the legislature in section 5A(2), itself, the rule would at once become inconsistent with the Act and to the extent of its inconsistency has to be treated to be null and void. Consequently, to save the rule and to make it effective and in consonance with section 5A(2), it must be read down to mean enabling the objectors to file objections within such period as may be fixed by the Collector subject to the outer limit of time as provided by section 5A(2).
6. The aforesaid discussion of the relevant statutory provisions, therefore, clearly indicates that an objector has to file his objections within 30 days of the issuance of the notification under section 4 and cannot file his objections beyond that time and if he files them beyond time, there would be no power with the Collector to entertain such objections and to proceed to decide the same as per Section 5A(2) of the Act. Such time barred objections have to be treated to be non est and have to be consigned to the record room without being processed or proceeded with. It is, therefore, obvious, in the light of the aforesaid statutory scheme that the objector is not entitled to be heard as of right in respect of objections filed after the expiry of period of 30 days after the date of issuance of notification u/s. 4. Consequently, the latter question as to tinder what circumstances, the objector can be heard on objections filed beyond 30 days cannot survive. We may now refer to the ratio of decided cases on the point which have been relied upon by the learned Advocates of the respective parties in support of their rival contentions on this issue. Mr. Zaveri for the appellant placed reliance on the decision of the Supreme Court in the case of State of Mysore v. Abdul Razak : 1SCR856 . Hegde, J. speaking for the Supreme Court has made the following pertinent observations on the scope and ambit of section 5A of the Act in the context of period for filing objections as laid down therein : -
'Section 5A empowers the interested person to object to the acquisition of any land but his objection should be filed within thirty days from the date of the issue of the notification. Any objection filed thereafter need not be considered as the same is filed after the time stipulated in S. 5A(l)'.
In fact, in view of the aforesaid authoritative pronouncement of the Supreme Court on the point, no doubt or debate can ever survive as to whether further time can be given by the Collector to the objector even going beyond the permissible time statutorily, granted by the legislature under section 5A(l) to the proposed objector. However, as reliance was placed on judgments taking a similar view as rendered by other High Courts, we may briefly note them. In the cases of A. P. Puranik v. Sholapur Municipality : AIR1973Bom160 , Mohmed Habibullah v. Special Deputy Collector : AIR1967Mad118 Pillayya v. State AIR 1969 Mys 240; Harkartar v. Lt. Governor : AIR1971Delhi195 , S. H. L. S. Society v. L. A. Officer Bijapur AIR 1973 Mys 44 and Brijmohan v. State : AIR1976All237 , a similar view is taken by these High Courts. In our view, in the light of the statutory scheme referred to above and authoritative pronouncement of the Supreme Court in the case of State of Mysore : 1SCR856 (supra), no other view is possible.
7. It is now time for us to refer to two Division Bench judgments of the court which have been thrown in scales by the respective sides for Supporting their respective cases. Before we advert to these decided cases and try to resolve the conflict between them, it is necessary to note a few introductory facts. The main controversy in the aforesaid decisions centred round the problem of laying down of proper procedure to be followed by the court in case it is found that section 4 notification excluding applicability of section 5A of the Act to urgency cases covered under the notification under section 4(l) read with section 17(4) of the Act was not justified on the facts of the case. In short, when it was found by the court that urgency clause was wrongly resorted to at the stage of section 4 notification and in fact there was no urgency which justified exclusion of procedure under section 5A, while striking down the notification under section 17(4), whether the court was justified it maintaining the notification under section 4(1) dehors the urgency clause. This controversy assumed importance because if, the declaration about the urgency was struck down and section 4(l) notification dehors the urgency clause was sustained, a direct question would arise as to whether the procedure under section 5A could be resorted to at that stage when 30 days for filing objections pursuant to the notification under section 4(1) would have naturally elapsed long back. Thus, a stalemate was likely to be created in case section 4 notification was sustained dehors the urgency clause and section 5A procedure was required to be followed in absence of urgency when such procedure could not be followed as 30 days were already over for filing objections after issuance of the notification under section 4(1). To get out of this stalemate, a way was suggested in the case of Hiralal Harjivandas v. State of Gujarat : (1964)5GLR924 . by taking an undertaking from the learned Advocate for the State Government that objections will be entertained by the Collector even after 30 days of the issuance of notification under section 4 and accordingly the said notification could be sustained. It is this via media indicated in the aforesaid decision which came up, for further scrutiny before a later division bench of this court in the case of Natvarlal Jerambhai v. State : AIR1971Guj264 decided by J. B. Mehta and A. D. Desai, JJ. (as they then were). A. D. Desai, J. speaking for the Division Bench observed in that later case that when section 5A laid down a statutory upper limit of time for filing objections, such a limit cannot be whittled down or extended by taking an undertaking from the Advocate for the State of Gujarat especially when such an undertaking cannot bind the Collector who is an independent statutory authority functioning under the Act. Under these circumstances, the only way is to strike down, section 4(l) notification as a whole rather than sustaining the same dehors section 17(l) notification. as urgency clause was found to be wrongly applied by the acquiring authority. The decision in : (1964)5GLR924 was found to be decided per incuriam. Similarly, later Division Bench decision in the case of Ishwarlal, Girdharlal Joshi v. State of Gujarat : (1967)8GLR729 following the ratio of the decision in : (1964)5GLR924 was equally held to be per incuriam. We may usefully refer to the relevant observations of the Division Bench speaking through A. D. Desai, J. in Natverlal's case (supra) :-
'Now under the provisions of section 5A of the Act, any person interested in any land which has been notified under sec 4(1) of the Act as being needed or likely to be needed for a public purpose or for a company may within 30 days after the issue of the notification object to the acquisition of the land. The objections are to be filed before the Collector. Therefore, the authority to decide whether the objections have been filed within the period of 30 days or not, is in the first instance, the Collector. The Collector, though a servant of the State, when he exercises the power under Section 5A of the Act exercises the statutory power. The Collector when exercising statutory power acts on his own. The Collector is an independent officer. The Supreme Court in Jayantilal Amratlal Shodhan v. F.N. Rana : 5SCR294 , while dealing with the question of the powers of the Collector under section 5A of the Act has observed as under :-
'There was in the present case no delegation of any judicial powers vested in the Central Government. The power to hold an inquiry is statutorily vested in the Collector and the Collector has exercised that power'.
Thus, the Collector when he exercises the power under Section 5A of the Act acts as an independent statutory officer and pot as agent or delegate of the Government. The Collector when exercising the power Linder Section 5A of the Act is not bound in discharge of his statutory functions to follow any instructions given by the Government. The decisions of this court which have been cited hereinbefore proceeded on assumption that the Government had the power to direct the officer to receive the objections even though the same had been filed after the statutory period of 30 days provided under section 5A of the Act. It was not noticed by the court nor was argued before the court, that the undertaking by the Government cannot bind the Collector while discharging his functions under section 5A of the Act. It is clear that such an undertaking given by the State cannot bind the Collector nor can the court on the basis of an undertaking aid a party to contravene the provisions of the law. The Government cannot take into consideration the objections filed after the statutory period. The period within which the objections are to be filed is an essential requirement and it is only these objections which are filed within the period provided in the section that can be considered. The consideration of the objections filed within the statutory time is a condition precedent to exercise of power under section 5A of the Act and it cannot be extended by deciding to take into consideration objections filed beyond the statutory period. We are aware of the fact that the Government is not bound by the report of the Collector under Section 5A of the Act and also that the decision of the appropriate Government on the objections shall be final the statute casts a duty on the officer to report and the Government is bound to consider the same before issuance of notification under Section 6 of the Act. What is final is the decision of the appropriate Government on the objections i.e. the decision on merits. The Government can consider only those objections which are filed within the period of 30 days as provided in Section 5A of the Act the said requirement is also a condition precedent to the exercise of power by the appropriate Government under Section 6 of the Act. It is, therefore, clear that this court can have no jurisdiction to issue a direction to the Collector to receive the objections if filed beyond the statutory, period. The aforesaid decisions of this court were decisions per incuriam as the Collector's position while exercising powers under Section 5A of the Act was not noticed by the court or was not brought to the notice of the court and, therefore, cannot have the force of binding authority'
The reasoning adopted by the Division Bench in Natverlal's case : AIR1971Guj264 is unexceptional and on the contrary it is in consonance with the statutory scheme discussed by us earlier and it also falls in line with the ratio of the decision of the Supreme Court in : 1SCR856 (supra). In fact, we fail to appreciate how any contrary view can ever be taken in the teeth of the aforesaid settled legal position, emanating from the statutory scheme of the Act as interpreted by the Supreme Court in the aforesaid decision. In our view, the decision in Natverlal's case (supra) represents the correct legal position.
8. Still however, a later Division Bench of this court in the case of State of Gujarat v. Dashrathlal : AIR1975Guj63 , took the view that the Collector has power to receive objections beyond 30 days of the date of publication of section 4 notification in view of rules 1 and 2 of the rules which we have already extracted in the earlier part of this judgment. M. P. Thakkar, J. (as he then was) speaking for the Division Bench in that case held that the ratio of the decision of the Division Bench in Natverlals case : AIR1971Guj264 (supra) was per incuriam as statutory rules 1 and 2 were not brought to the notice of the court. Having extracted the relevant observations in Natverlal's case (supra), M P. Thakkar, J. made the following observations in connection with the decision in Natverlal's case (supra) : -
'With due deference to the learned Judges we are constrained to say that the aforesaid observations made by them are unjustified and unwarranted. They were, saying so with respect, labouring under a misconception in assuming that the decision in Hiralal's case : (1964)5GLR924 (supra) were rendered per incuriam by reason of a material aspect being overlooked. We are constrained to hold that the decision rendered in Natverlal's was case itself is rendered per incuriam, and is not binding for the reasons which will become manifest in a moment. The criticism that decision in Hiralal's case and in Ishwarlal's case : (1967)8GLR729 is rendered per incuriam is erected on the premise that the Collector has no competence or jurisdiction to hear the objections lodged by a person whose land is placed under acquisition once the statutory time limit of 30 days has expired. With respect to the learned Judges, this premise has been wrongly assumed. There was and there still is a rule in existence framed by the State Government under section 55 of the Act which empowers the Collector to extend the time limit for filing the objections.
In connection with rule 2 of the rules, further observations have been made by M. P. Thakkar, J. as under :-
'It is abundantly clear on examination of rule 2 that the time limit of the 30 days contemplated by section 1A for presentation of the objections can be extended by the Collector. We have no doubt that if these rules had been brought to the notice of the learned Judges who decided Natverlal's case, the view would not have been taken by then that the Collector has no legal competence to entertain any objections after the expiry of the dead line of 30 days envisaged by Section 5A. The statutory rules in terms provide for such an eventuality. So also the attention of the court was not called to the circumstance that the provision enabling a party whose lands are placed under acquisition to lodge objections is designed for the benefit of such a party and that the essence of the matter is that an opportunity is afforded to them before a decision is taken, and before notification under Sec.6 is issued. The essence of the matter is giving of such opportunity, not giving it within a particular number of days. There is no conceivable virtue or merit in affording a hearing 'within' thirty days. It is not as if the period of thirty days is of mystical significance and is surrounded by some magic halo. No principle or policy underlines the selection of the period. Some time limit has to be provided for the sake of convenience and that is why the tenure of 30 days was hit upon. There is no rationale underlying the selection of this particular period. It is not as if the success or failure of the objections or the validity of the decision on this question turns on whether or not the objections are lodged within these 30 fateful days. One cannot detect any 'logos' or 'ethos' in investing 'now-or-never' significance to this period. The party whose lands are placed under acquisition it is true, may not have an unrestricted right to lodge objections beyond the time limit of 30 days embodied in Section 5A. But that time limit operates as a limitation on the right of the party and not as a limitation on the power of the Collector to hear the objections. Surely the party whose lands are under acquisition cannot question the power of the Collector to hear the objections on any conceivable rational ground notwithstanding the fact that they have not lodged any such objections? Surely a party cannot be reasonably expected to object to this being dealt with fairly and his being afforded an opportunity to show cause against the proposed acquisition notwithstanding the expiry of the dead-line for filing objections? Even if rules had not provided for extension of the time limit, under no principle of law could it have been said that the Collector acted in violation of the principles of fair play in affording him such an opportunity. All that the Collector does by extending the time limit of 30 days is to pay homage to the principles of natural justice and no more. He does a good turn to the land owner not an evil act. Even if the rules are silent, the courts usually read into the relevant provisions, the principles 6f fair play and natural justice and insist on compliance with such principles notwithstanding the fact that there is no positive command by the Legislature. Is it not therefore futile (it certainly is) to canvass that the Collector has no legal jurisdiction or competence to hear the person whose land is proposed to be acquired merely because the time limit for lodging such objections has expired? Besides such a situation has arisen (it cannot be ignored) in the context of the fact that by very nature of things, a court of law takes some time in deciding matters. The time occupied in pursuing a legal proceeding in a court of law can scarcely be used as an alibi by the court itself in order to shut the door for making amends. In any view of the matter, therefore, it cannot be said that the decision rendered by the High Court in Hiralal's case (supra) and Ishvarlal's case (supra) is no longer good law having regard to the doctrine of per incuriam. In fact the decision rendered subsequently in Natverlal's case must be said to be per incuriam.'
With greatest respect to the learned Judges who decided the case in : AIR1975Guj63 , we must say that the decision rendered by them is itself per incuriam for the following reasons :- (i) The learned Judges have not noticed the express language of section 5A(l) of the Act which gives a statutory ceiling of 30 days for lodging objections and in not noticing that this ceiling of 30 days time is not for deciding objections; (ii) The learned Judges have completely missed to consider the scope and ambit of section 55 of the Act which provides that any rule framed by appropriate Government for guidance of the authorities under the Act has to be consistent with the Act. If any statutory rule tries to extend the period of limitation for filing objections 4s envisaged by the Legislature by enacting section 5A(l), the rule would be liable to be struck down as being ultra vires Section 5A at it would be rendered inconsistent with the Act. This aspect of the matter is totally missed by the Division Bench which decided the case in : AIR1975Guj63 (iii) The ratio of the decision in : AIR1975Guj63 is per incuriam also on the ground that it is rendered without considering the binding decision of the Supreme Court on the point as reported in : 1SCR856 (supra). As these vital aspects of the matter were not at all before the mind's eye of the Division Bench which decided the case in : AIR1975Guj63 , it must be held that the said decision itself is per incuriam. Even otherwise, the ratio of the said decision flies in the face of the statutory scheme as envisaged by the Act and as pronounced upon by the authoritative pronouncedent of the Supreme Court in : 1SCR856 . We must, therefore, hold that : AIR1975Guj63 does not lay down good law and it is, therefore, required to be over ruled. It must be kept in view that whether 30 days period for filing objections is proper or not or whether there is any sanctity behind that period is a question for the legislature to consider. It is not open to the court to sit in judgment over the legislative decision as reflected by the statutory provision laying down 30 days upper limit for filing objections to section 4 notification. May be, that there may be case for extending that period. May be, that there may not be any 'logos' and 'ethos' in investigating 'now or never' significance to this period, but as the period is provided by the legislature itself, it is the privilege of the legislature and no one else to extend that period by making suitable legislative amendments. So far as the court is concerned, it has got to follow the strict mandate of the statutory provision. Rule making authority equally has no jurisdiction to extend the period of limitation as laid down by the statutory provision and to clothe the Collector with any wider power for extending the period statutorily granted by the legislature. It is also pertinent to note that once section 5A fixes the outer limit of 30 days from the date of issue of the notification under section 4 for lodging objections the Collector cannot get any power under section 5A to accept and entertain any time barred objections. If he tries to do so, he will be acting ultra vires the statute. No question of paying homage to principles of natural justice is involved in such an ultra vires and, therefore, abortive exercise as, with respects, wrongly assumed by the learned Judges in : AIR1975Guj63 . Before we close this discussion, we must mention that the Division Bench in : AIR1975Guj63 was justified in observing that the statutory rules 1 and 2 were not brought to the notice of the Division- Bench which decided : AIR1971Guj264 . However, on account of that fact, the said decision is not rendered per incuriam as wrongly assumed by the Division Bench in : AIR1975Guj63 for the simple reason that even if such rule could have been pressed in service before the Division Bench which decided : AIR1971Guj264 , it would not have made any difference to the ratio of its decision as such a rule which purported to travel beyond the statutory limit for filing objections as envisaged by section 5A would have to be ignored as ultra vires or inconsistent with the Act. Hence, non consideration of such ineffective or incompetent rule, if at all it is to be construed as extending the period of limitation, could not have made the slightest effect on the vitality of the ratio of the decision in : AIR1971Guj264 Consequently, it must be held that the ratio of decision of : AIR1971Guj264 is not rendered per incuriam or ineffective. It must be held to be laying down the correct law as already observed by us earlier. In this connection, we may also refer to a decision of the Supreme Court in State of Mysore v. V. K. Kangan : 1SCR369 which had an occasion to consider the land acquisition rules framed by the Madras Government in the light of section 5A proceedings. Relevant Madras rule 3 reproduced in the said decision reads as under : -
'Hearing of objections; (a) if a statement of objections is filed after the due date or by a person who is not interested in the land it shall be summarily rejected.
(b) If any objections are received from a person interested in the land and within the time prescribed in sub-section (1) of S. 5A, the Collector shall fix a date for hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land, where such department is not the Revenue department; Copies of the objections shall also be forwarded to such department or company. The department or company may file on or before the date fixed by the Collector a statement by way of answer to the objections and may also depute a representative to attend the enquiry.'
The question before the Supreme Court was whether this rule which laid down issuance of notice of objections to the department or a company acquiring the land was in any way inconsistent with S. 5A. The Supreme Court held that such a provision in the rule in no way conflicted with S. 5A of the Act as S. 5A itself permitted the Collector to hear all objections and to make such further inquiry if any as he thinks necessary. Now, a mere look at the aforesaid rule shows that so far as period of receiving of objections is concerned, the Madras rule runs completely parallel to S. 5A(l) and in no way seeks to travel beyond the same. In fact, it is a model for drafting rules which have to run parallel to the section. It is because of the inaccurate drafting of the then Bombay rule which has been adopted in Gujarat that the present controversy has arisen and has led to the decision in : AIR1975Guj63 which we have found to be not in consonance with the statutory scheme. As a result of the aforesaid discussion, it must be held that those objectors who do not file their objections within the period of 30 days as provided by S. 5A(1) of the Act are not entitled to be heard by the Collector in S. 5A inquiry and their objections have got to be ignored. We, therefore, answer question
No. 4 in the negative.
Question No. 5 : -
8A. In order to appreciate the contours of the controversy underling this question, it is necessary to note S. 47 as enacted in the Central Act which reads as under :-
'If the Collector is opposed or impeded in taking possession under this Act of any land he shall, if a Magistrate, enforce the surrender of the land to himself, and if not a Magistrate, he shall apply to a Magistrate, or (within the towns of Calcutta, Madras and Bombay) to the Commissioner of Police, and such Magistrate or Commissioner (as the case may be) shall enforce the surrender of the land to the Collector.
It only provides the manner in which the Collector who is opposed or impeded in taking possession, under the Act, of any land can take assistance of magistrate to enforce such surrender of possession to him. By Land Acquisition (Gujarat Unification and Amendment) Act 20 of 1965, S.47A was inserted by S. 21 of the Amending Act after S. 47. The said S. 47A reads as under : -
'47A. (1) In the application of this Act to the State of Gujarat, for S, 47, the provisions of sub-sections (2) and (3) of this section shall be substituted.
(2) If the Collector is opposed or impeded in taking possession under this Act of any land or in preventing enjoyment of any easement extinguished under Act, he shall, if a District Magistrate enforce the surrender of the land to himself or the closure of such easement and if not such Magistrate, he shall apply in any area for which a Commissioner of, Police has been appointed to the Commissioner of Police and elsewhere to any Executive Magistrate and such Commissioner or Magistrate shall enforce the surrender of the land to the Collector, or as the case may be, the closure of such easement.
(3) Any action taken by a Collector Magistrate or Commissioner of Police under sub-section (2) shall not be questioned in any civil court and no injunction shall be issued by such court for restraining such action, but the aggrieved party shall be entitled in such court to reasonable compensation for any damage suffered by him by reason of the powers under this section being exercised by any such officer wrongfully or without authority.'
It is sub-section (3) of S. 47A which has been the subject matter of fierce controversy between the respective parties. It is contended by Mr. Zaveri for the appellant that once the land acquisition proceedings reach the stage of S. 47A and once the Collector takes assistance of Executive Magistrate or Commissioner of Police to enforce surrender of land to the Collector by seeking to forcibly driving out the persons in possession of the acquired land, such person cannot seek resort to civil court and cannot obtain any injunction against the concerned authorities exercising powers under S. 47A; while it was submitted on behalf of the respondents-plaintiffs that if the challenge is mounted on of entire acquisition proceedings including land acquisition notifications under Ss. 4 and 6 along with the award and if incidentally and consequentially, challenge also extends to e proposed threatened action of the concerned authority under S. 47A(2), the civil Court's jurisdiction as vested under S. 9 read with O. 39 Rr. 1 and 2 of the C. P. Code is not at all whittled down or adversely affected.
8B. In order to resolve this controversy between the parties it is necessary to closely analyse the legislative scheme as discernible, from S. 47A(3). The first part of that subsection lays down that if any action is taken by a Collector, Magistrate or Commissioner of Police under sub-section (2), such action cannot be questioned in any civil Court; while the second part of the said sub-section enjoins that no injunction shall be issued by any civil Court for restraining such action. So far as first part is concerned, it is obvious that it does not and cannot take within its sweep any challenge independent of the limited challenge to the action taken by the Collector, Magistrate or Commissioner of Police under sub-section (2) of S. 47A, meaning thereby, that if along with such challenge is clubbed or combined any other legally permissible challenge to notifications under Ss. 4 and 6 or to the award under S. 11 read with S. 12 of the Act, such type of challenges are not prohibited by the first part of S. 47A(3). It is therefore, obvious that despite what is stated in S. 47A(3), properly constituted challenge to the entire land acquisition proceedings initiating from S. 4(1) onwards and culminating into award under S. 11 read with S. 12 of the Act, can be made the subject matter of a civil suit in the civil Court and such a suit can be proceeded with on merits despite what is stated in S. 47A(3). The said provision will only bar the jurisdiction of the civil Court to the extent of challenge to any action taken by the Collector, Magistrate or Commissioner of Police under sub-section (2) of S. 47A. It is this limited power of challenge which is taken out of the jurisdiction of the Civil Court.
9. Then the question remains its to whether any suit wherein there is a combined challenge to Ss. 4 and 6 notifications its well as to the challenge under Ss. 12 and 16 and also to the action of the Collector, Magistrate or Commissioner of Police under S. 47A(2), to what extent such combined challenge can effectively proceed to trial. It is obvious that if the party is so indolent that it allows Ss. 4 and 6 notifications to go unchallenged for quite some time and despite service of notice under S. 9(1) which obviously brings to the party sufficient knowledge about issuance of S. 6 notification, lies by, files claim statement for award of proper compensation pursuant to S. 9 notice and allows the matter to dragon till the award is passed under S. 12(l) will also further allows the proceedings to drift on till S. 16 stage is reached arid when the Collector is impeded or opposed in taking possession of the acquired land under the award so that final stage is reached when the Collector takes resort to S. 47A of the Act and then any such party wakes from the slumber and mounts a composite challenge against the acquiring body before the civil court challenging not only the last act of the Collector under S. 47A but also the earlier proceedings under Ss. 4(6) and 120) as well S. 16, such indolent party which has allowed sufficient grass to grow under its feet must take the consequence such a belated combined challenge will practically remain otiose and abortive, for that party. It cannot challenge the ultimate and the last act of the drama viz. action under S. 47A(2). The civil Court can only consider this belated challenge to the land acquisition proceedings under Ss. 4(l) and 6 as well as Ss. 11 and 12 of the Act for whatever it is worth. This of course can be done provided such challenge is within the period of limitation as already discussed by us earlier while considering the questions Nos. 1, 2 and 1. But even though this is done, the ultimate action under S. 47A(2) will remain outside the pale of civil Court's jurisdiction. As it is outside the pale of civil Court's jurisdiction that in Court naturally can have no jurisdiction to issue any injunction under O. 39 Rr. 1 and 2 of the C. P. Code qua that part of the subject matter which is outside the scope and ambit of its jurisdiction. This is the such of the bar provided by second part of sub-section (3) of the S. 47A. In fact, that part is a corollary and is complimentary to the earlier part of S. 47A(3) which takes out such challenge to actions under S. 47A(2) from the pale of civil Court's jurisdiction. Consequently, when the proceedings reached such last stage of the drama of acquisition proceedings, the civil Court cannot assist such indolent and careless party. Under these circumstances once the proceedings have reached the final stage under S. 47A(2) and the Collector, Magistrate or the Commissioner of Police has threatened to take action under S. 47A(2) against such threatened action, no challenge can be mounted in the civil Court nor can an injunction be issued restraining such action despite the fact that such challenge can be clubbed with other legally permissible challenges to the penultimate stages of land acquisition proceedings stoing from S 4(1) onwards to S. 12. The question then remains as to whether such a combined challenge to earlier stages of land acquisition proceedings which can legitimately be considered by the civil Court provided they are within time can be of, any practical utility to the concerned plaintiff when final action under S' 47A(2) cannot be restrained by the civil Court by issuing any injunction interim or final. As enjoined by S, 47A(3), even this canondrum is met by the legislature itself by enacting later part of S. 47A(3). It lays down that the aggrieved party is entitled to reasonable compensation for any damage suffered by him by reason of the powers under this section being exercised by any such officer wrongfully or without authority. This if in a suit ultimately the civil Court comes to the conclusion while entertaining on merits the challenge to the earlier stages of the land acquisition proceedings starting from S. 4(1) onwards to S. 12, that the acquisition proceedings were unauthorised or illegal on any ground which might be made out in trial and consequently if it is held that even the later action of the Collector under S. 47A(2) of the Act was illegal or unauthorised, reasonable compensation can be awarded by the civil Court to the concerned party and apart from it, as a logical corollary to the challenge to the earlier stages of acquisition proceedings having become successful, consequential relief by way of restoration of possession can also be ordered by the civil Court in favour of the successful plaintiff. However, one thing remains clear that if the party has allowed sufficient time to elapse and has not thought it fit to challenge various stages of acquisition proceedings promptly and at proper time and has allowed them to drift on so much so that they have reached the climax or anti-climax of S. 47A(2) stage possession of such party cannot be protected through the civil Court by way of interim injunction nor can the action of the Collector or other authority under S. 47A(2) be brought in challenge by way of an independent and direct attack on such action. Mr. Shah for the respondents submitted that if this is the scope and ambit of the legislative mandate as descernible from S. 47A(3), then even if ultimately other legally permissible challenge to the earlier stages of the land acquisition proceedings gets successful, in a given case, no real relief might be granted by the civil Court and even restoration of possession may not be possible at that stage as in the meantime, the acquired land may have vested free from all encumbrances under S. 16 of the Act in the acquiring body and the acquiring body for whom acquisition is resorted to might have put in huge structures at substantial cost oil such acquired land or even may part with possession of such land making ultimate restoration of possession and restoration of status quo ante absolutely impracticable, if not impossible. This apprehension voiced by Mr. Shah is neither here nor there nor is it well sustained. If party is indolent enough and careless enough to allow grass to grow under its feet to such an extent that final stage under S. 47A is reached it has to thank itself for the consequences. It cannot hold any one also responsible for its own procrastination 6r delay. But even that apart, all that S. 47A(3) second part mandates is that no civil Court shall issue injunction for restraining an action under S. 47A(2). Consequently, possession would be lost by the concerned plaintiff pursuant to the action, under S. 47A(2) and no interim relief would be available to the concerned party. But such a provision nowhere lays down that the civil Court in a proper case cannot grant any other type of injunction restraining the concerned defendant who may be acquiring authorities is well as body for whose benefit acquisition is made from parting with possession of the acquired land or from changing the status quo regarding the acquired land till the disposal of the suit. Such a relief would not fly in the face of S. 47A(3). Mr. Shah's apprehension that notice possession is lost, tile land would vest free from all encumbrances in the acquiring authority under S. 16 is also uncalled for as the civil suit wherein earlier stages of acquisition proceedings emanating from S. 4(l) and ending with Ss. 12 and 16 of the Act are already brought in challenge against the concerned defendants would remain very much alive on the file of the civil Court and consequently, effect of operation of S. 6 qua the acquired land and the consequences flowing from parting of possession would also remain in the melting pot as a subject matter and consequently whatever takes place pending the suit will be subject to the final result of the suit for which the concerned parties will remain liable and answerable. It must, therefore, be, held that the bar cr6ated by S. 47A can be pleaded in the suit where the challenge is a combined challenge not only to the proceedings under S. 47A but also to the legality of the award to the limited extent that one part of the challenge to the proceedings under S. 47A would be barred but other part of the challenge if any to the award even to earlier stages of the land acquisition proceedings by way of Ss. 4 and 6 notifications would remain outside the bar and such challenges can be considered on their merits by the civil Court subject to the period of limitation as already seen while answering questions Nos. 1, 2 and 3. We may at this stage mention that. Mr. Zaveri for the appellant -submitted that as framed , question No. 5 does not bring out the real controversy between the parties which was sought to be resolved by reference to the Full Bench. Even Mr. Shah for the plaintiffs also submitted to the same effect. Accordingly, after hearing the learned counsel for both the sides, we have refrained question No. 5 as under : -
'Whether in a civil suit, after proceedings under S. 47A have been started, after service of S. 80 C. P. C. notice, can an injunction restraining disturbance of possession be granted by the civil Court in view of S. 47A(3)?
So far as this reformed question is concerned, our answer is in the negative in view of the reasoning given by us while interpreting the statutory scheme of S. 47A(3) herein before. We also find that whether S. 47A(2) action is challenged after service of S. 80 C. P. C. notice or not, is totally besides the point. The question is at what stage aggrieved party comes to the civil Court. If it comes to the civil Court at such a belated stage when S. 47A(2) proceedings are already in the offing, it has to thank itself for its delay and procrastination. Such a party being late Latif really misses the bus and cannot protect its possession despite the merits of its challenge to the earlier stages of the proceedings and despite its challenge to earlier part of the proceedings being well within limitation. By, merely serving notice under S. 80 C. P. Code, the clock cannot be put back by the concerned party nor can such notice act as an injunction restraining the Collector from proceeding beyond the stage of S. 16 onwards.
10. Now is the time for us to consider the judgments of two learned single Judge of this Court rendered in connection with this very provision.
11. In the case of Mohanlal v. State AIR 1972 Guj 173, S. H. Sheth, J. was concerned with the question whether the civil Court can grant injunction restraining the defendant from taking possession of the land under acquisition from the plaintiff when the Collector, Surat, had proceeded to take possession as per S. 47A(2) of the Act. Repelling the contention on behalf of the plaint of that if the action taken by the Collector under the Land Acquisition Act is challenged as unlawful or ultra vires his powers, then S. 47A has no application, the learned Judge made the following observations in para 6 of the report;-
'The first contention which Mr. Chovkhawala has raised before me is that sub-section (2) of S. 47A contemplates a valid action on the part of the Collector under the Land Acquisition Act. If the action taken by the Collector under the Land Acquisition Act is challenged as unlawful or ultra vires his powers, then S. 47A has no application to such an action and any suit filed for challenging such an action is not subject to the provisions of S. 47A. I am unable to agree with Mr. Chokhawala in this submission of his. All the sub-sections have got to be read together in order to find out the intention of the legislature. Sub-section (3) provides for reasonable compensation for any damage which a person may have suffered by reason of the wrongful exercise of his power by an officer or by the exercise of some power by an officer without authority. S. 47A. therefore, in terms contemplates cases of wrongful exercise of power under the Land Acquisition Act by an officer or exercise of power by an officer without authority. Reading sub-section (2) in light of sub-section (3) it is clear to me that the actions contemplated by subsection (2) are not necessarily valid actions. They must purport to be actions under the Land Acquisition Act. If the connotation of sub-section (2) is circumscribed only to valid actions under the Land Acquisition Act, as Mr. Chokhawala contends, then the provisions of sub-section (3) would be rendered absolutely redundant because in such a case no question of providing for compensation for wrongful exercise of power or exercise of power without authority will at all arise.'
The learned Judge also repelled the contention on behalf of the plaintiff that no one had impeded or opposed the Collector in taking possession, by holding that the plaint itself stated that the Collector or someone on his behalf had gone to take possession of the land in question and that, therefore, the plaintiff had filed the suit on merits that the plaintiff had opposed the Collector in his attempt to take possession. The aforesaid view of the learned single Judge is quite in consonance with the statutory scheme reflected by S. 47A(2) and 13) of the Act. We are in entire agreement with the ratio of the aforesaid decision of this Court. This decision also, in our view, rightly repelled the contention that it is only the physical impediment offered by the concerned party to the Collector in taking possession of the acquired land that proceedings under S. 47A(2) can be initiated. The very fact that the Collector despite the award and despite being empowered under S. 16 to take possession, is not allowed to take possession either by any physical opposition rendered by a party in possession or by total non-co-operation exhibited by it by not remaining present on spot pursuant to the notice issued under S. 16 by the Collector, the result remains the same. The Collector can be said to have been opposed or impeded in taking possession under the Act of the acquired land in question and this circumstance would sufficiently clothe the Collector with power and authority to proceed further under S. 47A(2) of the Act. The contention of Mr. Shah for the respondents plaintiffs to the effect that in the present ease, the Collector was not offered any opposition on spot by the plaintiffs an taking possession and, therefore, he cannot resort to S. 47A(2) of the Act is also without any substance and trust be repelled.
12. We may now turn to the later decision of B. K. Mehta, J. in the case of Hakim A. Shah v. State : AIR1979Guj194 . Repelling the challenge to the constitutional validity of section 47A of the Act on the touchstone of Article 19(l)(f) of the Constitution, B. K. Mehta, J. has made the following observations in Para 14 of the report: -
'What sub-section (3) Section 47(A) prohibits is that the action of the Collector or the Magistrate or the Commissioner of Police under sub-sec (2) for enforcing the surrender of possession from a person in occupation of the property acquired cannot be questioned in a civil court, and no injunction could be issued by the court for restraining such an action of taking of possession. In other words, the person aggrieved by the acquisition proceedings cannot merely challenge the action of taking of possession and obtain any interim relief of injunction etc. in that behalf. Nonetheless sub-section (3) further provides that the aggrieved party would be entitled to move such court for reasonable compensation for any damage suffered by him by the person (reason?) of the exercise of the power under sub-section (2). The aggrieved party is, therefore, entitled to claim compensation in the court for wrongful exercise of such powers, or exercise of powers without authority. It cannot, therefore, be said that the cause of action or a part thereof is extinguished by sub-see. (3). It is merely a remedy to resist the action of the District Magistrate or the Police Commissioner as the case may be, to obtain possession by forcible means, by filing a suit and obtaining an injunction at the interim stage. The right to get compensation besides whatever relief a successful party would be entitled to in case of acquisition being held illegal or void is assured under sub-section (3). If a District Magistrate or a Police Commissioner enforces the surrender of possession wrongfully or without authority of law, he would expose the Government to the consequences of compensation. It cannot, therefore, be urged that this restriction is in any way unreasonable so as to infringe the right to hold and enjoy the property as guaranteed under Article 19(1)(f) of the Constitution.'
The aforesaid view, with respect, is also in consonance with the, statutory scheme as discussed by us earlier while analysing the scheme of the said provision. In our view, there is no conflict between, the two decisions rendered by two learned Single Judges on the construction of section 47A(B) of the Act. The observations made by B. K. Mehta, J. to the effect at the person aggrieved by the acquisition proceeding cannot merely challenge the action of taking, of possession and obtain injunction etc. are in consonance with the scheme of section 47-A(3) which as discussed by us earlier, clearly indicates that if there is composite challenge wherein earlier stages of the acquisition proceedings are brought in a melting pot, the other part of such challenge up to the penultimate stages of the acquisition proceedings is not contraindicated by section 47A(3). Only the ultimate stage of section 47A(2) proceedings is taken out of the jurisdiction of the civil court. Consequently, it must be held that instead of reviving any inter se conflict, these decisions correctly lay, down the contours of the scope and ambit, of the provision of section 47A(2)(3) of the Act. We must,. therefore, answer question No. 5 as, referred by J, P. Desai J., partly in the affirmative and partly in the negative as already shown earlier, while the reframed question No. 5 has to be answered in the negative.
13. Order accordingly.