Delhi High Court
The Lt. Governor Of Delhi And Ors. vs Mandir Sita Ramji And Anr. on 9 May, 1972
Equivalent citations: AIR 1973 DELHI 218, ILR (1973) 1 DELHI 57
JUDGMENT Prakash Narain, J.
1. This is an appeal under clause 10 of the letters patent against the judgment of a learned single Judge of this Court. Who has issued a writ quashing the notification dated 7th November. 1968. issued under Section 6 in the Land Acquisition Act. 1894 in respect of certain lands in village Karkar Doma. Shahdara. Delhi.
2. The fact of the case are that on November 13, 1959 the Delhi Administration issued a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act) notifying for likely acquisition of land measuring 34,017 acres. The said notification further set out that inter alia "land under graveyards tombs shrines and the land attached to religious institutions and Wakf property was exempted from the preview of the said notification. Shree Sita Ram Bhandar. a society registered under the society Registration Act 1860 preferred certain objection Act, 1860 preferred certain objection under Section 5-A of the Act in respect of 324 bights of land in village Karkar Doma (Shahdara) Delhi. According to the objection of this society. the land in respect of which it had filed objection belonged to Mandir Sita Ramji Pilani. in Rajasthan and was outside the purview of the acquisition . The Land Acquisition collector submitted his report to the Delhi Administration in respect of notified land and thereafter. on November 7, 1968 the Delhi Administration made a declaration under Section 6 of the Act. by a notification of that date. purporting to acquiring various of which including the land in respect of which Shree Sita Ram Bhandar had filed objection the under Section 5-A of the Act. A writ Petition No.330 of 1970 challenging the said acquisition on the various grounds including the contention that the section 6 notification had been issued and the declaration under section 6 of the Act had been made without affording an opportunity of the Shree Sita Ram Bhandar of being single on it objection under Section 5-A of the Act. was filed . The learned single Judge,. who heroes this petition . allowed the same by his judgment dated 28th September. 1971. and held that "both the requirements of a hearing. by which is meant a full and adequate hearing. as well as recommendation by the collector which is mandatory under Section 5-A of the Act not having been complied with the declaration under Section 6 made in this case (without complying with both these requirements) cannot obviously be upheld." Aggrieved by this judgment the Lt. Governor of Delhi and others. who were respondents in the Writ Petition preferred a Letters Patent Appeal.
3. One of the points that were canvassed before on was that the notification under Section 6 has been rightly quashed inasmuch as the hearing contemplated by Section 5-A of the Act was not given by there Collector before making his recommendation to the Delhi Administration and even the Delhi Administration and did not apply its mind of the objection of Shree Sita Ram Bhandar prior to making of the declaration under Section 6 of the Act. We therefore without prejudice to the contention of the parties directed by our order dated 6th April 1972. that the Delhi Administration should given a hearing to Shree Sita Ram Bhandar on the objection that if filed before a the collector under Section 5-A of the Act and a report about it as well as the decision of the Delhi Administration should be submitted to this court by 27th of April 1972. The report of the Delhi Administration has been filed along with the decision of the Delhi Administration which has been taken on the record and made a part of it. According to this report a hearing was afford to Shree Sita Bhandar which has represented by counsel before the Delhi Administration. the proceeding of the hearing were conducted before Shri R. N. Puri Deputy Secretary (Land & Buildings) Delhi Administration who submitted the report of the along with his report to the secretary (Land & Building). Delhi Administration. Shri Prabhakar Kamath, Secretary (L & B ) then put up all these appears. along with his comments before the report of Shri Puri rejected the objection of the Shree Sita Ram Bhandar.
4. Before us the points that have been agitated areas follows:--
(a) No hearing having been given by the Collector as required under Section 5-A of the Act. the declaration under Section 6 of the Act has been rightly quashed by the learned single Judge.
(b) Inasmuch as the collector did not make any recommendations in respect of the land in question . that the Delhi Administration could not record its satisfaction as has been rightly held by the learned single Judge.
(c) that the hearing now given by the Delhi Administration under the order of the Court dated April 6, 1972 cannot be regarded as hearing contemplated by Section 5-a of the Act and the basic infirmity still remains.
(d) that the hearing under the orders of the court was to be given by the Delhi Administration and the hearing before the Deputy Secretary does not amount to compliance with the direction and orders of the Court.
(e) that in any case the hearing given by the Deputy Secretary Delhi Administration was not a full hearing and the decision taken in pursuance of the cannot be regarded as a decision given in consonance with the provision of law of the principles of natural justice. further the order of the Lt. governor is not a speaking order and so is vitiated.
(f) That the land in question is attached to a temple on the land dedicated to Hanumanji and so is land attached to a religious institution which results in the acquired land being exempt from the purview of the notification under Section 4 of the Act.
5. When the matter had been argued before the learned single Judge the arguments were confined go noncompliance of the provision of the Section 5-A of the Act and the non-application of his mind by the Collector to the objection of Shree Sita Ram Bhandar make any recommendation about the land in question. Both these objection were sustained by the leaned single Judge and he held that the requirement of a hearing under Section 5-A as well as the requirement not having been complied with in this case. the declaration under Section 6 of the Act could not be sustained.
6. At the stage it will be advantageous to notice what exactly happened before the collector after Shree Sita Ram Bhandar and filed it objection. It seem that a notice was given to Shree Ram Bhandar to attend at hearing on the 27th July 1962. with regard to the objection file by it. On that not readily traceable and so another copy of the objection was handed over to the collector. On these objections the following endorsement was made by the Collector:--
"P1. report if this property is that of Mandir Sita Ramji. a charitable in situation and is exempt from the notification."
7. It is the common case of the both the parties that no report was received by the collector in respect of the endorsement made by him on 27th July 1962, and there was also no further hearing before the collector. As already observed earlier. on 7th November 1968, the Collector made this recommendation to the Delhi Administration in respect of the Land in question. It would be advantageous to quote from this report. The Collector's recommendation in respect of the land in question was as follows:--
"One objection was received from Shri D. R. Rungata. General Attorney of Shree Sita Ram Bhandar who stated that the objection had following land and houses etc. the land in question:
(1) Land measuring 324 Bights. (2) Five cattle sheds pace built of vast admissions (3) Several servant's quarters. (4) Wells five in number. (5) One fruit garden.
(6) Several Godowns.
(7) One Shri Hanuman Mandir. (8) One Pathshala.
Other objection raised by him are mostly of a general nature. Decision may kindly be tank after inspection of site".
8. The objection that had been filed under Section 5-A (Annexure Iii to the Writ Petition) inter alia stated that Shree Sita Ram Bhandar the objector. is managing Shri Sita Ram Mandir and other temples in Pilani (Rajasthan) and other religious and charitable institutions e.g. Dharamshala, Yagyashalas, etc., in and outside Rajasthan that the said objection won and possess the following land and house etc. on it near village Karkar Doma Shahdara, Delhi:--
(A) Land measuring 342 Bighas, (B) Five cattle sheds puce built of vast dimensions.
(C) Secular Servant's Quarters.
(D) Wells 5 in number.
(E) One Fruit Garden.
(F) Several Godowns.
(G) One Shri Hanuman Mandir.
(H) One Pathshala.
that all the above properties mentioned at times (B) to (H) are situated and built in the above mentioned land measuring 324 Bighas that the above mentioned buildings were constructed and the land was purchased for the purpose of the said Trust and the income from the same has been used for the maintenance of the Gaushala and other religions institutions and described before that the objections object to the and their properties being acquired amounts others. for there reason that the said Notification under Section 4 of the Act is ultra vireos the Constitution and therefore a nullity and that the is land is the property and the religions institution and there fore is exempted from being acquired under clause 2 (d) of the said Notification under Section 4 of the Act.
9. There can be no dispute that the hearing contemplated by Section 5-A of the Act is mandatory for the person interested has no other opportunity of the objection to the proposed acquisition except in proceedings under Section 5-A if land is acquired without affording the hearing contemplated by Section 5-A except where the provision of Section 17 of the Act are attracted. such acquisition has to be struck down. It is settled law that the provisions of the Section 5-A as the Act with regard to affording a hearing are mandatory though some distinction may be made in the revision of Section 5-A with regard to the recommendations to be made by the Collector which have been held by some courts not to be mandatory in nature. But the real purpose of the Section 5-A is that on receipt of objection. the objection and he must also make a recommendation as contemplated by Section 5-A though those recommendation are not binding on the Government and are of the mere recommendatory nature. What found favor with the learned single Judge in the present case was not only that an opportunity of the heard on the objection was not afforded but the a collector abdicated his functions to make recommendations in repeat of the land in question which he could not do. On this aspect the learned single Judge has referred to the decision of the Bench of this Court in. P. A. No of 11 1969 Hanuman Preside Gupta v. Lt. Governor decided on 6-11-1970. construing that derision the learned Judge came to the concussion the in the case of Hanuman parsed Gupta there was no complete addiction of his function by the Collector inasmuch as he did apply his mad to the objection before him and came to the objection before him and came legal. the state Government May commit a conclusion thereon and the refrained from expression any opinion about on the same. In the person case according to the learned Judge. There was complete abdication of his mind and function by the Collector and apart from summarizing the objection we did not apply his we are intercept full disagreement with his opinion of the learned Judge. But before ewe set down our reasons for it would be pertinent to examine the scope of the bearing contemplated by the Section 5-A of the Act as well as the scope and nature of there recommendation that the Collector is requirement to make in his report under Section 5-A.
10. As is evident on a reading of Section 5-A any person interested in the land which has been notified under Section 4, sub-section (1) is notified under to submit his objections in writing. As was observed by Sikri. C. J. in Parshotam Jadavji Jain v. State of Gujarat . the said objection "must allege some specific objections such as these:
(i) the notified purpose is not genuinely or property a public purpose
(ii) the land notified is not suitable for the purpose for such purpose for which it is notified.
(iii) the land is not so well situated as other land;
(iv) the areas proposed is excessive
(v) the objector's land has been selected maliciously or vexatiously;
(vi) the question will destroy or impair the amenity of historical or artistic monuments and places of public resort; will take was important public right or way or other conveniences or will desecrate religious buildings. graveyard and the like.' After admitting an objection and after having given the objection an opportunity of being land either in person or by pleader. the Collector is to decide whether it is desirable to hear oral or documentary evidence and in this hearing her shall afford to the other party an opportunity of rebutting the evidence led and of cross examining the witnesses. Thereafter. the Collector makes in recommendation. The scope of the inquiry of be conducted by the Collector however is restricted. All Collector that he had to find out in this inquiry is whether the objection is a person interested. the extent of land which will meet the requirement which of the specific public purpose and whether the objections as field on question of fact are sustainable . The collector may also opine as to whether the proposed acquisition should be proceeded with in respect of the public purpose of which the land has been notified of intended acquisition. The inquiry by the Collector is thus to serve a twofold purpose it is intended to instruct the mind of the Government so that the Government would be in a position on decide whether any land is needed for a public purpose for a company. and it is also meant to act as a safeguard against any ill informed action on the part of the Government it is left to the subjective a satisfaction of the Government concerned to decide whether any particular land is needed for a public purpose of or company. A safeguard has however been provided that the Government does not act on any incorrect information and there by deprive a person of his property. The inquiry intended to serve the purpose of affording an opportunity to the person interested to show that the land is not needed for a public purpose of for a company and that the proposal for acquisition initiated by the Government by issued of a notification under Section 4 should not culminate into any definite proceeding for acquisition of the land a but should be dropped (see Patel Gandalal Somnath v. State of Gujarat, ). We cannot agree with the contention raised on behalf of the appellant the at the inquiry contemplated by Section 5-A is merely an administrative inquiry. The action of the Government in acquiring land may be an administrative action but inasmuch as the action has civil consequences in the nature of depriving a person of his property though compensation is contemplated to be paid the inquiry conducted by the Collector under Section 5-a must be regarded as a quasi-judicial inquiry though his report may be an administrative report may be an administrative report on which the satisfaction of the Government is to be recorded. Inasmuch as the statue itself requires that a hearing must be given we need not dilate on the applicability of the principles of natural justice in administrative action having civil consequences. It is in this state of law that it has to be seen whether there has or has not been compliance with the provisions of Section 5-A of the Act in the present case.
11. What found favor with the learned single Judge was that the Collector after asking for a report on the objection filed by Shree Sita Ram Bhandar did not afford any further hearing to the objection and proceeded to make a recommendation without even receiving a report on the query made by him on 27th July. 1962. The crucial point it whether the recommendation of the Collector in the case in Shree Sita Ram Bhandar which we have notice above spell out an abdication of his function by the Collector and whether on further opportunity being granted to the objection amount to a denial of the right of hearing. In our view on a reading of the objections as filed by Shree Sita Ram Bhandar, the only question that remained for a decision of the Government was whether the land and building . Other than those which the Collector recommended should be left out of acquisition stood exempted from the purview of the Notification under Section 4 of the Act in view of the exemption clause in the said Notification. Whether the words "attached to" could be equated to the words "owned by" was the only question left for determination of the concerned Government and this is what was referred by the Collector for the decided of the Delhi Administration. The rule laid down by the Bench of this court in the case of Shri Hanuman Prasad Gupta, L. P. A. No.11 of 1969 D/- 6-11-1970 was clearly attracted. The collector had summarised the objection which indicates application and not abdication of the mind by him leaving the decision on the question of law of the Government. It was not necessary in the circumstances of the case o of that the Collector's recommendations on the objection should have taken the form of either agreeing or disagreeing with the same. The recommendation contemplated by Section 5-A of the Act may (to quote from the Bench decision in Shri Hanuman Prasad Gupta's case) as well take the shape of suggestion the appropriate Government that the objection raise certain issues but even if the Collector own opinion on the legal issues is not there it will nonetheless be a recommendation. nothing more and nothing less".
12. The learned counsel for the respondents had urged but the tenor of the note of the Collector made on 27th July. 1962. shows that what had to be found out was--
(a) whether property in question was the property of Shri Mandir Sita Ramji;
(b) whether in was a charitable institution and
(c) whether in this view of the matter it was exempt from the Notification.
All the could not be regarded as a mere question of law. The constitution of Shree Sita Ram Bhandar was on the record and it was not in dispute that a temple may be a religious institution. Therefore on these facts all that ahd to be decided was whether in terms of the exemption contained in the Notification under Section 4 of the Act. land measuring 324 beghas. etc. were exempt from the purview of the acquisition. On this aspect it is decision of the Government which was to be has been observed by us earlier.
13. It is nobody's case that after the Collector ahd submitted his report the objection has any right of government prior to the appropriate Government cording of satisfaction leading to the issue of the Notification and a declaration under Section 6 of the Act. Inasmuch as the question of law may be considered as somewhat ticklish. We felt that in the fitness of things. Without creating a precedent the respondents/objectors as may be heard by the Delhi Administration . The appropriate Government in this case and so directed that a hearing may be given by the Delhi Administration to the objector. Shree Sita Ram Bhandar, and report about the hearing the recording the satisfaction of the Government on those objections be submitted to us. As already noticed earlier that the received in Court and we find that the objection stood rejected. Unless it can be shown that the satisfaction so recorded by the Lt. Governor of Delhi is perverse or exfacie country of the settled law. This court will not be in appeal to reverse the satisfaction so recorded. this leads us to the consideration of the arguments advanced on behalf of the respondent which we have summarized in point (c) to (f) earlier.
14. For the purposes of this case although there is not express finding of the Delhi Administration. We may presume that the Hanuman temple on a portion of the land in question is an old temple and is a religious institution. The question would then arise whether the land in question is "attached to" this religions institution. Mrs. Shymala Pappy the learned counsel for the Lt Governor and Delhi Administration contested the proposition that the Hanuman temple which has been exempted from acquisition is a religious institution. But argued in the alternative that assuming that the said temple is a religious institution on material was placed by the objector or the show that the land in question was attached to his temple. We will examine this contention in due course.
15. It is true that the hearing afforded by the Delhi Administration in pursuance of the court order dated April 6, 1972 cannot be regarded as a hearing contemplated by Section 5-A of the Act. But then as we have already observed the collector had entertained the objection by Shree Sita Ram Bhandar and on the assumption that it was a religious/charitable institution referred the question of law regarding exemption of ht properties claimed to be owned by Shree Sita Ram Bhandar or Mandir Sita Ramji for the decision of the Mandir Sita Ramji for the decision of the Delhi Administration . In that view of them, alter in our view. the infirmity pleaded that there was no hearing as contemplated by Section 5-A cases to have any force. It has not been shown to us what the objection could have shown to the Collector on further hearing. If all the had to be shown was that the property was owned by Shree Sita Ram Bhandar/ Mandir Sita Ramji or that then property was owned by a religious institution then the only thing to be determine was whether ownership was synonymous to the land being attached to the institution. As far as that is concerned it had to be decided by the Delhi Administration and an opportunity to do so was afforded to the first respondent under the Court's order dated April 6, 1972, inasmuch as the sprit of the law is that a party should have a hearing the requirement stand satisfied. In that view of the matter we need not dilate on the various precedents cited on behalf of the respondent in which the supreme Court has laid stress on the principles of natural justice being followed even in the case of administrative orders involving civil consequences.
16. It was urged by the learned counsel for the first respondent that the hearing given that this court's order dated April 6, 1972 by the Dy. Secretary odes not amount to the court inasmuch as the hearing a was to be given by the Delhi Administration and not the Deputy Delhi Administration and not the deputy Secretary. there is no force in this contention. The Delhi administration has to be act though its officer and a responsible officer of the status of the Deputy Secretary was deputed to given the hearing after the initial objection of the first respondent to the hearing being given by the Collector was upheld. The Deputy Secretary then submitted the entire record of the proceedings before him to the Secretary Who in the turn placed it before the Lt. Governor in that view of the matter if must be held that the court's order dated April 6, 1972 was fully complied with.
17. A grievance was made by the course for the first respondent that the hearing as given was not a full hearing and the satisfaction recorded by the Lt. Governor cannot be regarded as on more plying with the provisions of Section 6 of the Act inasmuch as the order is not a speaking order. There is no force in this contention. A perusal of the proceeding filed in this Court shows that the objection was represented by course before the Deputy of Secretary in this R. N. Puri and was allowed to file crosses objection witness is untenable inasmuch as it was for the objection to substantiate its place and on witness appeared on behalf of the Government it was urged that certain witness whom the objection wanted to produce were not summoned and were not allowed to be produced. On 21st April 1972 a list of 12 witnesses was file by the objection without disclosing the relevancy of those witnesses. Sub sequentially the counsel for the objection gave on the witness and regarding the clerk of the Land Acquisition Collector whom he wanted to summon since the file was already before Shri Puri the counsel agreed to given him up also. Regarding the third and the fourth witnesses counsel agreed to place copies of the affidavits of ht two witnesses on the record and the fifth witness was also given up. the counsel wanted Shri K. K. Srivastava Revenue Assistance to be summoned but since Shri Shrivastav's was affidavit was on record that was disallowed two more witness were also given up and of two other witness the counsel agreed to file affidavits. In the end and the counsel only wanted two witnesses to be summoned Shri Puri felt that he had no powers to summon these witnesses and so directed that their deposition on behalf of the objection may be brought on record by their affidavit being filed. This was done. thus the contention that some witnesses of the objection whose affidavits were taken on record the question of the cross examining them did not arise. The site was inspected by Shri Puri in the company of the counsel for the objection as well as its manager and another employee. In this the month of the first respondent to urge that the hearing as given was not complete. As already noticed earlier. a full record of the proceedings before Shri Puri was placed ultimately before the Lt. Governor who has in terms and the he agreed with the report an therefore rejected the objection in administrate proceedings it is not necessary that every officer should writ a detailed order. so long as it is clear that the higher authority has applied its mind, the order or the higher authority need not be speaking order. It is apparent on a reading or the notice of the Lt. Governor that the had applied his mind inasmuch as he agreed with the report of Shri Puri. We thus find that there is no force a all the contention raised by the respondents.
18. We now come to the last contention that the words "attached to" are synonymous with "owned by" the contention is that it is not necessary for ht eland to be physically attached to institution in the use sense be physically attached to institution in the sense of its being contiguous to the institution because land even at some distance may be attached to an institution. if it is owned by the institution. We cannot agree with this contention. It may be that physical contiguity is not relevant but then "attached to" connotes something different from mere ownership. The first respondent had not stated in its objection that the notified properties were attached to any temple. All that was said was that the said properties were owned by the objector. Therefore any enquiry that the land in question was attached to Hanuman temple on the land would have been really outside the scope of the objection as raised. However even if it could be said that the abjection should be read to mean that the land was attached to the Hanuman Mandir no evidence was adduced either before us or before the Delhi Administration to show that the land was really attached to the Hanuman temple. As is apparent from a reading of the report of Shri Puri. the accounts of the first respondent were not produced to show that the income from the land in question was n question for maintenance or upkeep of the Hanuman temple. If it had been so shown perhaps it could be argued that the land in question was attached to the Hanuman temple. It was nobody's case that the land in question was owned by the Hanuman temple nor was it shown that the income of the land was utilised by the first respondent for the said temple. or the there even was any income from the land in question. The ordinary dictionary meaning of the word spell our different concepts and we cannot persuade ourselves to agree with the contention that the words "attached to" and "owned by" would be have the same meaning the concept. there is no ambiguity in the meaning of the case it has been assumed that the land in question was in the ownership of the Shree Sita Ram Bhandar/ Mandir Sita Ramji . It only remain to be considered what in law is the meaning of the words that the land in question was attached to Shri Sita Ram Bhandar/ Mandir Sita Ram the Hanuman temple on the land in question.
19. The word "attached" has been judicially interpreted in the context of may statues. When the words is considered in relation to article or things considered in fixing the rating value of the premises it means to quote from the speech of Cockburn C. J. in Laing v. Bishopswearmouth, (1878) 3 Qbc 299 "now does the word 'attached' there mean attached by some physical fastening such as screws or bolts? If it does a thing weighting tones. Which cannot be and never was intended to be lifted. would not bee taken into account if not fastened to the some part of the building whereas if it were fastened it would. That as is seems to my mind would be monstrous consequence. I do not think the word 'attached' does not there means 'physically fasted so as to determine whether the thing is to be taken into account or not." Similarly whether open space was "directly attached" to a dwelling house came up for consideration in Brayce v. Lindsay, 39 Sc Lr 141 and was held to means a space in the contact with the dwelling house which space belong to the owner of such house of the can prevent from he being build on. In Grant v. Langston 1900 Ac 390 "attached" to a dwelling house was held not to be mean mere contact of the some part of the two structures. but as being attached for use with the dwelling house. Thus it is the manner of the utilisation of the land which will determine whether it was "attached" to or not in the person case. Inasmuch as nothing has been shown that the land was utilised for the purposes of the temple or the institution or that its income was so utilised it must be held that the mere contiguity of the land to the temple of Shri Hanuman or it ownership by Shri Sita Ram Bhandar/ Mandar Sita Ramji at Pilani would not make the land in question "attached to" any more of these. In this view of the matter. We do not find anything partly illegal in the satisfaction recorded by the Lt. Governor that the land in question doesn't qualify for the exempted from the acquisition.
20. The result is that the appeal is accepted and the writ petition filed by the first respondent is dismissed filed in the circumstance of the case, we make on order as to costs.
21. Appeal allowed.