Mukul Mudgal, J. -
(1.) 1. This writ petition challenges the action of the respondents in issuing
the declaration under Section 6 of the Land Acquisition Act, 1894
(hereinafter referred to as the "Act") dated 9th November, 2005 published
in the Times of India on 24th November, 2005 purporting to acquire land
bearing Khasra No. 125, measuring 5 bighas, 8 biswas, situated in the
revenue Estate of village Mehrauli, Tehsil Mehrauli, Delhi (hereinafter
referred to as the "said land") in violation of the statutory limitation period
of one year from the publication of the date of the notification under Section
4 of the Act prescribed for the issuance of the Declaration under Section 6
of the Act.
(2.) The brief facts of this case as per the case set up by the petitioner are
(a) On 2nd February 1999, a Joint survey of the said land was conducted
by the respondent No. 4, i.e., DDA/L & B Deptt.
(b) On 15th November, 1999 a Notification dated 11th November, 1999
under Section 4 of the Act was published in the "Hindustan Times". The
public purpose stated in the said notification was that the land was likely
to be required to be taken by the Government at public expense for a public
purpose, namely for 'Vasant Kunj Residential Scheme' under Planned
Development of Delhi. The said Notification also stated that the Lt.
Governor Delhi was satisfied that the provisions of Sub-section 1 of Section
17 of the Act are applicable to this land and therefore, directed under Section
17 (4). of the Act that the provisions of Section 5(A) of the Act shall not apply
to the said land. The petitioner's land was covered by the said notification.
Section 4, Section 17(1), Section 17(4) and Section 5(A) of the Act read as
"Section 4 - Publication of preliminary notification and powers
of officers thereupon. (1) Whenever it appears to the appropriate
Government that land in any locality is needed or is likely to be needed
for any public purpose or for a company a notification to that effect shall
be published in the official Gazette [and in two daily newspapers circulating
in that locality of which at least one shall be in the regional
language] and the Collector shall cause public notice of the substance of
such notification to be given at convenient places in the said locality [the
last of the dates of such publication and the giving of such public notice,
being hereinafter referred to as the date of publication of the notification] .
(2) Thereupon it shall be lawful for any officer, either, generally or
specially authorised by such Government in this behalf, and for his
servants and workmen, to enter upon and survey and take levels of any
land in such locality; to dig or bore in the sub-soil; to do all other acts
necessary to ascertain whether the land is adapted for such purpose; to
set out the boundaries of the land proposed to be taken and the intended
line of the work (if any) proposed to be made thereon; to mark such levels,
boundaries and line by placing marks and cutting trenches, and, where
otherwise the survey cannot be completed and the levels taken and the
boundaries and line marked, to cut down and clear away any part of any
standing crop, fence of jungle:
Provided that no person shall enter into any building or upon any
enclosed court or garden attached to a dwelling-house (unless with the
consent of the occupier thereof)without previously giving such occupier
at least seven days' notice in writing of his intention to do so."
Section 5A - Hearing of objections - (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(l), 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 be entitled to claim an interest in compensation
if the land were acquired under this Act."
"Section 17(1) - In case of urgency, whenever the Appropriate
Government so'directs, the Collector, though no such award has been
made, may, on the expiration of fifteen days from the publication of the
notice mentioned in section 9, sub-section (1), [take possession of any
land needed for a public purpose]. Such land shall thereupon vest
absolutely in the Government, free from all encumbrances."
Section 17(4) - In the case of any land to which, in the opinion of
the appropriate Government, the provisions of sub-section(1), or sub-sec-
tion (2) are applicable, the appropriate Government may direct that the
provisions of Section 5A shall not apply, and, if it does so direct, a
declaration may be made under Section 6 in respect of the land at any
time [after the date of the publication of the notification under section
4, sub-section (1):"
(c) On 10th December, 1999, the petitioner filed a writ petition No.
7446/99 challenging the notification dated 11th November, 1999 issued
under Section 4 of the Act on the ground that there was no material for
dispensing with the enquiry under Section 5(A) of the Act. The respondent
No. 1 at no stage , had even seen the file concerning the notification dated
11th November, 1999.
(d) On 15th December, 1999, the Division Bench of this court issued
Rule in the above said writ petition and granted a limited stay to the
petitioner to the extent that the respondent would not interfere with the
possession of the petitioner in respect of the notified land.
(e) On 29th September 2000, the respondent No. 4, i.e., Land & Building,
Government of NCT, Delhi, issued a declaration under Section 6 of the Act
which was published on the same day. Section 6 of the Act reads as under:
"6. Declaration that land is required for a public purpose. - (1)
Subject to the provisions of Part VII of this Act, when the Appropriate
Government is satisfied after considering the report, if any, made under
Section 5A, sub section (2), that any particular land is needed for a public
purpose, or for a company, a declaration shall be made to that effect
under the signature of a secretary to such Government or of some officer
duly authorized to certify its orders and different declarations may be
made from time to time in respect of different parcels of any land covered
by the same notification under section 4, sub-section (1), irrespective of
whether one report or different reports has or have been made (wherever
required) under Section 5-A, sub-section (2):
[Provided that no declaration in respect of any particular land covered
by a notification under section 4, sub-section (1),
(i) published after the commencement of the Land Acquisition
(Amendment and Validation) Ordinance, 1976 but before the commencement
of the Land Acquisition (Amendment) Act, 1984 shall be made after
the expiry of three years from the date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition
(Amendment) Act, 1984, shall be made after the expiry of one year from
the date of the publication of the notification:
Provided further that no such declaration shall be made unless the
compensation to be awarded for such property is to be paid by a company,
or wholly or partly out of public revenues or some fund controlled or
managed by a local authority.
(Explanation 1 - In computing any of the periods referred to in the
first proviso, the period during which any action or proceeding to be
taken in pursuance of the notification of the notification issued under
Section 4, sub-section (1), is stayed by an order of a Court shall be
(Explanation 2 - Where the compensation to be awarded for such
property is to be paid out of the funds of a corporation owned or controlled
by the State, such compensation shall be deemed to be compensation
paid out of public revenues.]
(2) Every declaration shall be published in the Official Gazette, [and
in two daily newspapers circulating in the locality in which the land is
situate of which at least one shall be in the regional language, and the
collector shall cause public notice of the substance of such declaration to
be given at convenient places in the said locality (the last of the date of
the such publication and the giving of the public notice, being hereinafter
referred to as the date of publication of the declaration), and such
declaration shall state] the district or other territorial division in which
the land is situate, the purpose for which it is needed, its approximate
area, and where a plan shall have been made of the land, the place where
such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is
needed for a public purpose or for a company, as the case may be; and,
after making such declaration the Appropriate Government may acquire
the land in a manner hereinafter appearing."
(f) The respondent No. 3, i.e, the Land Acquisition Collector (South)
passed an award being Award No. 21/2002-2003 dated 28th September, 2002
in respect of the notified land.
(g) On 3rd February 2005, this Court accepted the contention raised by
the petitioner but quashed the notification dated 11th November, 1999 to a
limited extent in so far as it dispensed with the compliance of the provisions
of Section 5(A) of the Act. It was also held that after hearing the objections
the Authority should proceed with the acquisition proceedings in accordance
(h) On 21st February 2005, a review petition (C) No. 57/2005 was filed
in this Court by the petitioners against the aforementioned directions. The
said review petition was dismissed on 21st July 2006.
(i) During the pendency of the review petition, on 24th November 2005
the respondents published a second declaration dated 9th November 2005
under Section 6 of the Act.
(3.) The learned senior counsel for the petitioner Mr. P. N. Lekhi while
challenging the second declaration dated 9th November 2005 under Section
6 of the Act, submitted as under:
(a) It is clear from the interim order dated 15th December 1999 passed
on W.P(C) No. 7446 of 1999 which restrained the respondents from
interfering with the possession of the petitioner in respect of the said land
that there was no interim order of this court restraining the respondents
from completing the land acquisition proceedings.
(b) The subsequent conduct of the respondents in issuing a declaration
dated 29th September 2000 under Section 6 of the Act and passing an award
being Award No. 21/2003 dated 20th September 2002 in respect of the said
land also indicates that the the respondents also understood that there was
no impediment or a restraining order passed by this court in W.P(G) No.
7446/99 restraining them from completing the acquisition proceedings.
Thus, the respondents cannot rely on the provisio (ii) of Section 6(1) of the
(c) The notification cannot be good in part and bad in part. This court
having held that the notification of 1999 being partly bad should have gone
on to quash the notification. He relied on the following position of law laid
down by the Hon'ble Supreme Court in Vitthal v. State of
Karnataka,(2004) 10 SCC 162 wherein it was held that a rule cannot be
taken to be good in part and bad in part. The relevant portion of the said
judgment reads as follows:
"14. We are unable to accede to the submissions of the State Government,
the High Court and the "interim appointee". The decision of this
Court rendered on 11-10-2001 cannot be rendered nugatory by allowing
the very persons in respect of whose appointment this Court has held
that the Division Bench should not have allowed them to continue in
service. If the subsequent clarification has been misunderstood by the
High Court and the State, we can only say that it was unfortunate and
surprising as it could not reasonably be accepted that on a review
application which was being dismissed the Court had in fact allowed the
review and re decided the matter in a diametrically opposite manner.
Where the rule has been declared to be unconstitutional the consequences
must apply to all the services. The rule could not be taken to be
good in part and bad in part. Therefore, only to the extent that appointments
had been specifically and expressly protected by this Court the
striking down of the rule would operate against all persons who were
otherwise not so protected. The question of continuing the "interim
appointees" in service, therefore, does not arise. The second notification
is therefore quashed."
(d) Assuming but not conceding that the respondents were restrained
from issuing the declaration under Section 6 of the Act and/or proceeding
with the land, no declaration could have been issued under Section 6 of the
Act after the statutory period of one year prescribed under the Act had
expired and that the court has no discretion to extend the said statutory
period. This has also been laid down by the Hon'ble Supreme Court in the
case of Padmasundara Rao v. State of Karnataka, (2002) 3 SCC 533.
The relevant para of the said judgment reads as follows:
"11. It may be pointed out that the stipulation regarding the urgency
in terms of Section 5-A of the Act has no role to play when the period of
limitation under Section 6 is reckoned. The purpose for providing the
period of limitation seems to be the avoidance of inconvenience to a
person whose land is sought to be acquired. Compensation gets pegged
from the date of notification under Section 4(1). Section 11 provides that
the valuation of the land has to be done on the date of publication of
notification under Section 4(1). Section 23 deals with matters to be
considered in determining the compensation. It provides that the market
value of the land is to be fixed with reference to the date of publication
of the notification under Section 4(1) of the Act. The prescription of
time-limit in that background is, therefore, peremptory in nature. In
Ram Chand v. Union of India, (1994) 1 SCC 44, it was held by this
Court that though no period was prescribed, action within a reasonable
time was warranted. The said case related to a dispute which arose
before prescription of specific periods. After the quashing of declaration,
the same became non est and was effaced. It is fairly conceded by learned
counsel for the respondents that there is no bar on issuing a fresh
declaration after following the due procedure. It is, however, contended
that in case a fresh notification is to be issued, the market value has to
be determined on the basis of the fresh notification under Section 4(1)
of the Act and it may be a costly affair for the State. Even if it is so, the
interest of the person whose land is sought to be acquired, cannot be lost
sight of. He is to be compensated for acquisition of his land. If the
acquisition sought to be made is done in an illogical, illegal or irregular
manner, he cannot be made to suffer on that count.
14. While interpreting a provision the court only interprets the law
and cannot legislate. If a provision of law is misused and subjected to
the abuse of process of law, it is for the legislature to amend, modify or
repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v.
P.N.B. Capital Services Ltd., (2000) 5 SCC 515) The Legislative
casus omissus cannot be supplied by judicial interpretative process.
Language of Section 6(1) is plain and unambiguous. There is no scope
for reading something into it, as was done in Narasimhaiah case. In
Nanjudaiah case the period was further stretched to have the time period
run from date of service of the High Court's order. Such a view cannot
be reconciled with the language of Section 6(1). If the view is accepted it
would mean that a case can be covered by not only clause (i) and/or clause
(ii) of the proviso to Section 6(1), but also by a non-prescribed period.
Same can never be the legislative intent."
Thus, the second declaration dated 9th November 2005 issued under Section
6 of the Act is invalid because it was issued after a period of one year had
expired from the date of the notification issued under Section 4 of the Act.
(e) In Deepak Bhardwaj and others v. Union of India, 112 (2004)
DLT 937, this court quashed a notification under Section 4 of the Act
inasmuch as the time period prescribed for issuance of fresh declaration
under Section 6 had expired long back.;