Calcutta High Court
Kolkata Metropolitan Development ... vs Mahendra Nath Memorial Society And Ors. on 24 November, 2004
Equivalent citations: (2005)2CALLT229(HC), (2005) 2 ICC 277, AIR 2005 (NOC) 359 (CAL), 2005 A I H C 1761, (2005) 2 CALLT 229, (2005) 4 CIVLJ 656, (2005) 1 LACC 544
Author: Dilip Kumar Seth
Bench: Dilip Kumar Seth
JUDGMENT Dilip Kumar Seth, J.
1. M.A.T. No. 3029 of 2004 is preferred against the same judgment out of which M.A.T. No. 1821 of 2004 has since been preferred. M.A.T. No. 1821 2004 is in the list and was being heard for sometime and remained heard-in-part.
1.1. Mr. A.N. Banerjee, learned counsel on behalf of the appellant, had mentioned this matter (M.A.T. No. 3029 of 2004) earlier and we had directed that the matter should be in the list but the records could not be traced out so long. Today the records have come and have been placed before us.
1.2. By consent of the parties, M.A.T. No. 3029 of 2004 is treated as on day's list and is taken up for hearing.
1.3. This appeal has been filed after expiry of the limitation along with an application for condonation of delay. Despite objection on behalf of the respondents, and after having gone through the pleadings made out in the application for condonation of delay, we condone the delay. The application under Section 5 of the Limitation Act is thus disposed of. Let the appeal be registered. Since we propose to hear the appeal, no order need be passed on the application for stay.
1.4. Since the appeal is preferred against the same order against which M.A.T. No. 1821 of 2004 is preferred which is being heard, we propose to dispose of M.A.T. No. 3029 of 2004 along with M.A.T. No. 1821 of 2004.
1.5. By consent of the parties, M.A.T. No. 3029 of 2004 is treated as on day's list and heard along with M.A.T. No. 1821 of 2004 and disposed of as hereafter.
M.A.T. No. 1821 of 2004And M.A.T. No. 3029 of 2004 The scope:
2. In these two appeals the acquisition has been challenged on the ground that the objection filed by the writ petitioner-respondent was not considered. This is clearly in violation of the provisions contained in Section 5A of the Land Acquisition Act, 1894 (LA Act). Relying on various decision, the learned counsel for the respondent submitted that the provisions of Section 5A confers a very valuable right to the persons interested. Denial of opportunity of hearing as contemplated in Section 5A has the effect of invalidating the entire acquisition proceedings, particularly, the declaration under Section 6. In the present case, admittedly, the appellant in M.A.T. No. 3029 of 2004 had taken a stand that the objection was ignored on account of its being non-est/premature. Admittedly, therefore, no hearing was given and opportunity was denied. The protection that has been given to the persons interested to ventilate its objection goes to the root, according to the Scheme of the Act, of the declaration under Section 6, which is dependent on the consideration of the objection as contemplated under Section 5A.
2.1. The law is settled. The learned counsel for the appellant could not propound otherwise that denial of opportunity would invalidate the declaration under Section 6 on account of infraction of principles provided under Section 5A and Section 6 respectively.
The controversy:
3. Now this question has to be looked into according, to the controversy, which both sides had advanced. It is contended on behalf of the Kolkata Metropolitan Development Authority (KMDA), the appellant in M.A.T. No. 1821 of 2004, that the notification under Section 4(1) of the Land Acquisition Act was published in the Gazette dated 20th of January 1999, though the date of notification was 21st December 1998. As such the objection filed on 1st January 1999 could not have been filed until the notification was published in the Official Gazette, namely 20th January 1999. He contended that in the notification, it was mentioned that the period for submission of objection was 30 days after the publication of the substance of the notification in the locality. Therefore, the time would run only after giving of public notice of the substance of the notification in the locality and not publication. Therefore, the objection was non-est/premature and was rightly ignored. He also relied on the provisions of Section 4(1) and Section 5A of the LA Act.
3.1. Mr. Banerjee, appearing on behalf of the appellant in M.A.T. No. 3029 of 2004, contended that the period is provided in Section 5A as within one month from the publication of notification. According to him, this phrase 'Publication of notification' has been amended in 1984 substituting the phrase 'within 30 days after the issue of notification'. According to him, the two phrases 'issue of notification' and 'publication of notification' connotes two different purposes. The 'issue of notification' would mean the date of issue, namely 21st of December 1988, whereas 'publication of notification' would mean publication in the Official Gazette, which is 20th of January 1999. According to him, this publication of notification is to be construed as it is contemplated under Section 4(1), namely the last date of publication of the notification or the giving of public notice, which is to be so understood wherever it is referred to the date of publication of notification after Section 4(1). Therefore, the phrase 'publication of notification' used in Section 5A is to be interpreted according to the meaning given in Section 4(1) brought about by amendment with effect from 24th of September 1984, which is after the date of the decision in Dipak Pahwa v. Lt. Governor of Delhi and Ors., AIR 1984 SC 1721. In view aforesaid, it is to be deemed that this amendment would have the effect of diluting the principle laid down in Dipak Pahwa (supra) to the extent of submission of objection. To support his contention, he also relied on the decisions in The Premier Motor Pvt. Ltd. v. Jaswant Prasad and Ors., AIR 1989 AP 342; Nanappan Konthu and Ors. v. District Collector, Kottyam and Ors., AIR 1989 Kerala 223 and Garg Fars, Delhi and Ors. v. State of U.P. and Ors., AIR 1990 Allahabad 1.
3.2. Mr. Mukherjee on the other hand pointed out that Section 5A is an enabling provision which postulates giving an opportunity to a person interested. The LA Act affects the right of a person to hold property protected under Article 300A of the Constitution of India. Having regard to the compulsory nature, the little protection that has been given to a person interested cannot be taken away. Section 5A has to be considered in order to advance the object and purpose for which Section 5A has been incorporated. It cannot be construed to curtail or reduce the right whatever little has been provided for the person interested.
3.2.1. According to him, the time limit provided in Section 5A, i.e.: within 30 days from the date of the publication of the notification, provides the outer limit which is to be construed according to Section 4(1) being the last date of publication of the notification contemplated under Section 4(1) in any of the modes referred to therein. From the Scheme of the Act, it does not appear that anywhere any provision has been made for commencement curtailing the right to object. Therefore, this terminal point provided in Section 5A has to be construed in terms of Section 4(1) as amended in 1984, which, in fact, follows the principle laid down in Dipak Pahwa (supra) to do away with the controversy that was being faced by the Courts with regard to the terminal point. In the absence of any point of enhancement provided in the Act or within the Scheme expressly or by implication, the Court cannot construe the provisions to the inconvenience of the person interested, narrowing down the scope of Section 5A. Therefore, the objection submitted on the publication of the notice in any one of the modes contemplated under Section 4(1) would be valid and cannot be treated to be non-est or premature.
3.2.2. He also pointed out that a person may not be able to follow or trace out the publication in the Official Gazette, which normally does not reach ordinary people. The cause of notice to be given in the locality of the substance of the notification is also carried out through certain procedure, which is displayed in notice board in certain local offices. This also may not be known to many persons. The legislature was aware of these defects for which it had included publication in two newspapers circulating in the locality of which one has to be in the regional language only to facilitate persons interested to get notice of the intention of the State to acquire the property for the public purpose. Therefore, any one of the notices would be sufficient whether it proceeds or follows the other two modes even if the last date of such publication may be treated to be the date of publication for all other purposes namely for the purpose of declaration under Section 6 or for the purpose of determination of compensation under Section 23, but it cannot be construed in the same manner in relation of Section 5A.
3.2.3. The object and purpose of this is to give the person interested a right to object against the compulsory nature of acquisition. Acquisition is a law, which affects the right of an individual depriving him of his property compulsorily and the scope of objection is only limited to the extent that the property is not required for the public purposes or that the purpose mentioned is not a public purpose. The scope of objection is also very limited. The period is also limited. Therefore, it is not possible to construe the said provision to confine the period during which objection can be filed only to 30 days between the last date of publication and the expiry of 30 days from such last date of publication as contemplated under Section 4(1).
Whether the objection filed was non-est/premature:
4. After having heard the leaned counsel for the respective parties on this very question, it seems that the submission that has been advanced by Mr. Mukherjee are of substance and with which we are unable to disagree. In fact, Section 5A has been engrafted only to protect the interest of the person interested in respect of his property which is sought to be compulsorily acquired. The only right that has been given to the person interested is to raise his objection as to the necessity of the land for the purpose for which it is being acquired or that the purpose for which the land is acquired is not a public purpose. This limited right of objection only has been conferred on the person interested. From the Scheme of the Act, it does not appear that there was any provision, which provides the date of commencement from which the objection can be filed. The phrase 'thirty days from the publication of the notification' is the terminal point within which the objection can be filed and if such objection is filed within such date, the authority is bound to consider the same. This limitation was introduced only to facilitate early disposal of the objection for the purpose of completing the acquisition.
4.1. The limited right that has been given to the person interested has to be construed in accordance with the purpose and object for which Section 5A has been incorporated in the statute. It is an enabling provision. Since no commencement has been referred to the terminal point cannot be restricted to 30 days from the terminee. In fact, the cause of action arise as soon as the knowledge dawns upon the person interested that his property is going to be affected by compulsory acquisition, accordingly on the theory of cause of action, the right to object accrues. Section 5A with regard to objection is purely a procedural one. Section 5A does not create any substantive right in favour of the acquiring authority or the State. On the other hand, it confers a right on the person interested. It casts an obligation on the State to hear such objection and Section 6 declaration can be issued only after the objection is considered. Therefore, it is not possible to construe Section 5A to mean that the right to object would commence only on the last date of publication of the notification under Section 4(1) and would be confined to 30 days thereafter.
4.2. In the circumstances, in our view, whether the notification is published first in the newspaper or in the Gazette is immaterial. Normally the Department sends the notification for being published simultaneously in the newspaper and the Gazette. One publication may appear early, one may follow later; that will not make any difference. It was so held in Venkataswamappa v. Special Deputy Commissioner (Revenue), AIR 1997 SC 503 (para-5). In the said judgment, it was held that normally publication in the newspaper would be preceded by a publication in the Gazette notification. It may be that a while sending a notification which was approved by the Government for publication in the Gazette simultaneously for being published in the Gazette and in the newspaper, the newspaper publication was made before the Gazette publication was issued. This was held to be an irregularity in the procedural steps required to be taken under the Act. It does not invalidate initiation by the authority of the notification published in the Gazette. Therefore, on the basis of an irregularity, which is held not to be an illegality if someone claims to have acquired the right to object, in that event, such right cannot be taken away. Mere publication in the newspaper satisfies the requirement of publication required mandatorily under Section 4 without which there will be infraction of section" 4(1) and as such, the publication in the newspaper even if it is before the Gazette is published will be a publication required under Section 4(1) and it loses none of its importance and is one of the factors requiring mandatory compliance under Section 4(1). As such release of such publication in the newspaper for the purpose of submitting objection would be equally important and cannot be said to be non-est or premature.
4.3. Mr. Basu has also relied on Ram Chandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915 to support his contention that if an action has to be taken under a particular provision of a statute, it has to be taken as provided in the statute and not otherwise, relying upon paragraph 25 of the said decision. This principle is well settled and needs no elaboration and has since been reiterated right from Khwaja Nazir Ahmed v. Emperor, AIR 36 PC 253, since referred to in the said decision. But this will not lead us to conclude that the objection is to be filed only in between the 30 days period from the date of last date of the expiry of 30 days. On the other hand Section 6 declaration can only be made after consideration of objection filed by the person interested in terms of Section 5A and not otherwise.
4.4. Therefore, the admitted non-consideration of this objection stares on the face of the State affecting the right of the person interested.
Whether non-consideration of objection invalidates Section 6 declaration:
5. Now it is to be examined as to whether this non-compliance of Section 5A has the effect of invalidating the declaration under Section 6 and the process of acquisition, so far as the writ petitioner/ respondent is concerned. Inasmuch as none of the other persons interested had objected to the acquisition and as such rest of the acquisition cannot be challenged and has not been challenged before us and as such treated to be valid. Therefore, in this case, we are supposed to examine as to whether the acquisition of that part of land to which the respondent herein is interested would become invalid by reason of non compliance of Section 5A affecting the validity of the declaration under Section 6 and the acquisition proceeding.
5.1. Mr. Mukherjee relied on various decisions in which the Apex Court had laid down that omission to give opportunity under Section 5A affects the validity of declaration under Section 6. These are settled proposition of law with regard to which there cannot be any two opinion. Now we may consider in the light of the said decisions as to whether this denial of opportunity could be such as to render the acquisition void. In fact, Section 5A is a procedure, which creates right on the person interested to lodge his objection and cast an obligation on the acquiring authority to consider such objection before issuing declaration under Section 6. Whether this infraction in the procedure would altogether erode the validity of the declaration?
5.2. Mr. Basu has referred to a series of decisions to contend that if there is delay in challenging the validity of the Section 6 declaration, in that event, when the purpose is for a public purpose and the matter has become fait accompli then the Court should not interfere with such decision. He relied on Rambhai Lakhabai Bhakt v. State of Gujarat, (1995) 3 SCC 752; State of Tamil Nadu and Ors. v. L. Krishnan and Ors., (1996) 1 SCC 250; Executive Engineer, Jal Nigam Central Stores Division, U.P. v. Suresh Nand Juyal Alias Musa Ram, AIR 1997 SC 2180; Executive Engineer & Administration Officer v. Ugranappa and Ors., (2002)10 SCC 555 and Tej Kaur and Ors. v. State of Punjab, AIR 2003 SC 2414. All these decisions deal with cases where the persons interested slept over the objection submitted by them, which was not considered by the Acquiring Authority. The Apex Court had held and reiterated in these decisions the same principle that a person if sleeps over despite his knowledge and allows his right to slumber only to wake up at a late stage when the procedure has undertaken sufficient development and on the verge of completion giving rise to third party interest on account of handing over possession, the denial of opportunity will not erode the effect of Section 6 or the validity of the acquisition.
5.3. In most of those cases the award was passed. Distinction has been sought to be made in this case that here the writ petitioner had moved before the award was passed. But the fact remains that the notification was dated 21st of December 1998 which was published in newspaper on 24th of December 1998 and in the Gazette on 20th of January 1999; the local publication was made on 11th of August 1999; Section 6 declaration was issued on 4th of August 2000; Section 7 procedure was completed on 14th of March 2001 and steps under Section 9 was taken on 5th of July 2002; whereas the writ petition was moved on 18th of October 2001 viz: in between the last two dates mentioned above, It appears that there was almost 14 months delay in moving the writ petition after the Section 6 declaration. The objection was submitted on 14th of January 1999. Thus, it appears that the petitioner was waiting on the fence and had allowed the process of acquisition to proceed. In the present case, it appears that award was published on 2nd of August 2002 after all the process was completed. Thus, oh the principle enunciated by the decisions cited by Mr. Basu, as stated above, the writ petitioner/respondent has a point against them, a factor which might be applied as against his right, which he did not seriously enforce until October 2001, namely till after 14 months of the publication of the declaration under Section 6. This is one of the aspects that requires to be considered for the purpose of granting relief in the present case.
Scope of Court's intervention:
6. Admittedly, in the present case, by the time the acquisition was complete. Payment to the other persons interested had already been made after the award was published. The State had taken certain steps in that regard. Whether in such circumstances, the Court should interfere with the acquisition.
6.1. The question with regard to the acquisition of property for public purpose very often crops up before the Courts and sometimes at a very late stage when if the acquisition is quashed, it sets back the course of progress and development of the State process which are essentially for the purpose of catering to the needs of the public. Therefore, in Ramniklal N. Bhutta v. State of Maharashtra, AIR 1997 SC 1236: (1997) 1 SCC 134, the Apex Court in no uncertain terms had laid down:
"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian Tigers", e.g. South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in Courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably stay of acquisition is asked for and in some cases orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their powers of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a Civil Suit, granting of injunction or other similar orders, more particularly on an interlocutory nature, is equally discretionary. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226--indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceeding is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the Courts while dealing with challenges to acquisition proceedings."
6.2. We had occasion to deal with similar question in Ridh Karan Rekecha and Anr. v. Union of India and Ors., 2004 (4) CHN 327. Relying on the decision in Ramniklal N. Bhutta (supra), it was held in that case that if at this stage the notification is set aside, it would riot preclude the authority to issue a fresh notification and undergo the entire process of acquisition once again; it would be repetition of an empty formality. The only benefit the petitioners can get is shifting of the date of notification and thus an increased rate of compensation and nothing more. The ultimate relief the petitioners can get is only the compensation nothing more and nothing less. Even if the notification is set aside and if a fresh notification is issued, the petitioner would be entitled only to claim a higher rate of valuation on the date of issuing of the fresh notification. By reason of passage of time, it seems that the valuation might have increased. In such circumstances, the prejudice that was suffered by the petitioner would be adequately compensated by increased compensation on the principles laid down in Ramniklal N. Bhutta (supra).
6.3. In the present case, the possession of the land has already been taken. In such circumstances, the prejudice that might have been suffered by the petitioner/respondent can be compensated on the principles laid down in Ramniklal N. Bhutta (supra) for the reasons stated hereafter.
6.4. In case it is found that the illegality or irregularity is such which does not go to the root of the process or proceedings or which is somewhat procedural though substantive in nature, in such a case, the question can be looked into from the point of priority of the interest viz: public interest vis-a-vis private interest and convenience and inconvenience of the parties on the question of compensation. The entire scheme of the Act being compulsory in nature, a person interested is compensated by the compensation to be determined in terms of Section 23 LA Act which is according to the market value. May be a person might have special interest in respect of a particular property but then he cannot claim more than the market value even if he has interest in excess thereof. He may not agree to part therewith, still he cannot but accept the market value. He cannot expect his exceptional personal interest to be included in the market value save and except through the principles as provided in the Act itself in Section 23(1) LA Act. The Apex Court in Ramniklal N. Bhutta (supra) has, however, provided for such special interest effected by denial of right and with regard to irregularities in procedure. Denial of opportunity would therefore be susceptible to compensation in terms of the principles laid down in Ramniklal N. Bhutta (supra).
6.5. That apart, in order to ascertain the applicability of the above principles, we may also look into another factor i.e. the objection raised by the writ petitioner. This is at page 63 of the Paper Book. Now various objections have been made with regard to the necessity of the land for the own purpose of the writ petitioner, which would also cater to the needs of the public. It may be said to be for public purpose if the writ petitioner proposes to establish a school. But a public purpose is to be considered when it is undertaken by the State. Even if an individual wants to serve the people, which may be for public purpose in common sense but that would not be a public purpose within the meaning of the LA Act or the concept of public purpose which the Courts follow in respect of the compulsory acquisition of property. Inasmuch as it still involves some private interest coupled with some amount of private purpose. Even then if it is for a public purpose then a question of comparative importance of the two purposes can be weighed with. Whether the hospital is a more important public project or the school, a question, which may be considered. But then, it is to be considered by the Acquisitioning Authority in terms of the Section 5A read with Section 6 and the decision as to which one is more important would be non-justiciable, and the Court cannot substitute its own view unless perversity or mala fide writ large.
6.6. In the circumstances, this objection does not show that there is any kind of objection, which could have led the Acquisitioning Authority to drop the acquisition even though the property might have been purchased by the writ petitioner after having obtained 'No Objection' from the KMDA and the Land Acquisition Department. Then again in paragraph 12 at page 71 of the Paper Book the writ petitioner had pointed out: "According to the instruction of the authority we have already purchased the portion of Pronob Prosad Roy and going to purchase the rest of the portion from the other owners i.e. heirs of Late Protiva Chandra Roy." Thus, it appears that without any specification as to which portion of the plot and to what quantum of measurement, the writ petitioners had lodged their claim. A person interested may claim interest in a property as owner or otherwise but not as an intending buyer. However, Mr. Mukherjee, on instruction, has pointed out from certain letters, which are annexed with the Supplementary Paper Book at pages 82-84 and 85-86. These letters are dated 23rd of June 2003 and 30th of June 2003. From these letters, it is pointed out that the lands were purchased in between February and June 1998. But this information was not before the Acquiring Body on the date of issue of the declaration under Section 6. Without the particular specification as to what portion of the property and to what measurement the claimants were interested, the objection does not seem to be a serious one. Be that as it may, it does not raise any kind of objection to the validity of the public purpose or to the re-allotment of the property for the public purpose, which is the consideration that was to be made on the basis of the said objection. Thus, even if this objection was considered, in that event, in the absence of the objection to the extent, which could be raised in such a proceedings, it does not seem that the decision would have turned otherwise before the declaration under Section 6 was issued.
6.7. For the reasons discussed above, we do not consider that this a case fit for our intervention. However, it will be open to the petitioner to approach the State Government for allotment of land. If the petitioner so applies, it would be open to the State to allot such land it may deem fit.
Conclusion:
7. Considering all these aspects, we do not think that the writ petitioner/respondent would suffer prejudice on account of non-consideration of his, objection if we follow the principles laid down in Ramniklal N. Bhutta (supra) and adequately compensate him on that principle having regard to the purpose for which the land was required and the situation as it stands today.
7.1. At this stage, it was contended by Mr. Mukherjee that the person to whom the land was allotted for construction of hospital has left the project and has shifted to some other land. This is however disputed by Mr. Basu. We are not supposed to go into this question. But, if it appears to be so, then the State shall consider the allotment of the same land to the petitioner, at its discretion.
Order:
8. In the circumstances, the appeals succeed and are allowed. The order appealed against is hereby set aside and the writ petition is disposed of in the manner following.
8.1. Having regard to the facts and circumstances of the case, we modify the order passed on the writ petition to the extent that (1) the writ petitioner shall be entitled to 30% of the compensation awarded as added compensation on account of denial of opportunity of hearing on the basis of the ratio decided in Ramniklal N. Bhutta (supra) to be included within the amount of the award; (2) it is declared that the date of this order shall be deemed to be the date of the award for the purpose of seeking reference under Section 18 LA Act, if not already sought; (3) in case reference is already sought, in that event, this addition shall be taken into consideration by the Reference Court as part of the compensation but as an additional compensation which is to be considered at the rate of 30% of the award by the Reference Court in case the award by the Collector is enhanced and the compensation be computed by the Reference Court accordingly by proportionately enhancing the award by 30% ; (4) in case the payment of award has not been received by the petitioner, it would be open to it receive such amount together with all interest admissible without prejudice to its rights and contention in the reference, if pending, or the reference to be made hereafter, if not already made; (5) in case the amount is deposited in Court the writ petitioner shall be entitled to withdraw the amount from the Court and any interest, if any accrued thereon, shall be paid to the writ petitioner.
8.2. The writ petition is, thus, disposed of.
8.3. Both the appeals stand allowed as above.
9. Mr. Kundu prays for stay of operation of this judgment for one month. The operation of this judgment, however, shall remain stayed for a period of four weeks from date.
Urgent xerox certified copy, if applied for, be supplied to the parties at the earliest.
R.N. Sinha, J.
10. I agree.