Delhi High Court
Smt. Ram Rakhi vs Union Of India (Uoi) And Ors. on 8 May, 2002
Equivalent citations: AIR2002DELHI458, 99(2002)DLT51, 2002(64)DRJ156, AIR 2002 DELHI 458, 2002 A I H C 4440, (2002) 2 LACC 493, (2002) 64 DRJ 156, (2002) 99 DLT 51, (2002) 4 ICC 356, (2003) 2 LANDLR 135, (2003) 1 CIVLJ 773, (2002) 4 RECCIVR 141
Author: S.B. Sinha
Bench: S.B. Sinha, D.K. Jain, Manmohan Sarin
JUDGMENT S.B. Sinha, C.J.
1. A question seemingly of some importance is involved in these two writ petitions, as to whether a notification under Section 4(1) of the Land Acquisition Act, 1894 (in short the "said Act") as also Section 17 thereof, can be issued by a competent authority, pursuant to a direction issued by this Court.
2. The factual matrix of the matter is being noticed from CWP No.7648/00.
3. The petitioner therein purchased 149.5 sq. yds. of land in Khasra No. 573, Village Chandawli alias Shahdar, in the year 1958. A notification under Section 4 was issued for 1 bigha 19 biswas on 13th November 1959; whereafter, a declaration under Section 6 of the said Act was also issued on 1st November 1966. About 26 acres of land at the rear of the petitioner's plot, had been allotted to Delhi Police by Delhi Development Authority (in short the "DDA") in October 1980. A portion of the petitioner's premises was allegedly by Delhi Police, while erecting its boundary wall, leading to the petitioner filing a suit earning No.857/85 on 20th July 1985. The DDA, however, later on certified that the said plot belonged to the petitioner and not to the police authorities. In the meantime, having regard to the fact that no award was made, the notification dated 1st November 1966 lapsed on 23rd September 1986, in terms of the provisions of the Land Acquisition (Amendment) Act, 1984.
4. It stands admitted that thereafter the DDA made several requests to the Land Acquisition Authorities to acquire the land afresh, wherefor, letters dated 18th May 1987, 25th July 1989, 23rd March 1994, 29th July 1994 and 8th August 1995 were issued. The suit filed by the petitioner as mentioned hereinabove was decreed by judgment and decree dated 25th November 1992. Despite the same, allegedly on or about 1st July 1996 a large police force entered the petitioner's house and assaulted her younger son despite production of Court's order. The matter was reported to the Chief Justice of this Court by a telegram, which was treated as a Public Interest Litigation. According to the petitioner, to save their skin police authorities lodged a false First Information Report against the petitioner.
5. On or about 7th July 2000 one J.P. Suhag filed a Criminal Writ Petition bearing No.604/00, wherein, by an order dated 24th October 2000, a Division Bench of this Court directed DDA to take steps urgently to acquire the land in question and further directed them to take possession thereof and hand over the same to the police authorities on or before 30th November 2000. This Court further directed invocation of urgency provisions as contained in Section 17(4) of the said Act. Allegedly, in terms of the said direction, the Vice-Chairman DDA, by a letter dated 27/30th October 2000, requested the Principal Secretary (Lands) to get the notification issued on priority basis.
6. The approval of the Lt. Governor was obtained as would appear from the letter of Principal Secretary (PWD/Housing/Lands) dated 5th December 2000 addressed to the Vice Chairman, DDA.
7. A notification purported to be under Section 4 of the said Act was issued on 29th November 2000 stating therein that the land is likely to be required for public purpose, namely, for approach/access road for Police Station Krishna Nagar, East District under Planned Development of Delhi. In the said notification it was further directed that the provisions of Section 17(1) and Section 17(4) of the said Act would be applicable, as a result whereof, the provisions of Section 5A would not apply.
8. Thereafter the writ petition has been filed claiming, inter alia, the following reliefs:-
(i) issue a writ, order or direction in the nature of mandamus quashing the notification No. F.8(24)/94/L&B/LA/12793 dated 29.11.2000 issued under Section 4(1) of the Land Acquisition Act, 1894;
(ii) issue a writ/order/direction in the nature of mandamus quashing the notification No. F.8.(24)/94/L&B/LA/ 13164 dated 11.12.2000 issued under Section 6 of the Land Acquisition Act, 1894;
(iii) issue a writ/order/direction in the nature of mandamus quashing the Notification No. F.8(24)/94/L&B/LA/ 13165 dated 11.12.2000 issued under Section 17(1) of the Land Acquisition Act, 1894;
(iv) issue a writ/order/direction in the nature of prohibition restraining the respondents from disposing the petitioner from her land bearing No.B-II, Block No.5, admeasuring 149.1/2 sq. yds. situated in colony known as Kanti Nagar Village, Chandawali (also known as Shahdara), Delhi bearing plot no.D-10, Kanti Nagar, Delhi-110051 in the Municipal records;
9. Mr. Sandeep Sethi and Mr. G.L.Rawal, learned counsel appearing on behalf of the petitioners, would submit that this Court could not have issued a writ of or in the nature of mandamus in a criminal writ petition, at the instance of third party, directing the DDA to acquire land and that too upon invoking the provisions of Section 17 thereof. Learned counsel would submit that, having regard to the phraseology used in Section 4 of the said Act, independent application of mind by the acquiring authority was a sin-qua-non for arriving at its satisfaction that the land in question is required or is likely to be required for a public purpose. The learned counsel would argue that the impugned notification suffers from a total non-application of mind, in so far as, such a satisfaction could have been arrived at (a) as regards the identification of land; (b) whether the land was required for public purpose or not; (c) whether land in question necessary to be acquired; and (d) whether the provisions of Section 5A could be given a go by, by invoking the urgency provision as contained in Section 17(1) of the said Act. The learned counsel would contend that in this case there had been no change in the circumstances, which were prevailing in the year 1986, when the notification was allowed to be lapsed and the date on which the impugned notification had been issued, except the intervening circumstances, namely, the order of this Court dated 24th October 2000 passed in Criminal Writ Petition No.604/00 and, thus, it must be held that there was absolutely no reason to invoke the urgency Clause. Learned counsel would further urge that, having regard to the fact that more than forty years elapsed there could not have been any plausible reason for invoking the emergency clause, inasmuch as, if the authorities could wait for forty years, they could wait for a period of thirty days more. Had an opportunity, as is provided for in Section 5A of the said Act, been granted to the petitioners, they cold have shown, as was found by Shri T.N.Mohan, DCP after an investigation conducted by him for exploring avenues of access to the police station that alternative routes to the police station are available. Such an opportunity having not been granted, learned counsel would contend, the impugned direction must be held to be wholly arbitrary. Learned counsel, in support of his contention, has placed strong reliance on Jnanedya Yogam and Anr. v. K.K. Pankajakshy and Ors. ; and Om Prakash and Anr. v. State of U.P. and Ors. .
10. The learned counsel would urge that in a matter of this nature the Court had absolutely no jurisdiction to issue mandamus of the nature as has been done in the instant case. Strong reliance in this connection has been placed on Mansukhlal Vithaldas Chauhan v. State of Gujarat .
11. Ms. Geeta Mittal and Ms.Geeta Luthra, learned counsel appearing on behalf of the respondents, on the other hand, would submit that the Court could issue such a mandamus and, in support of the said contention, placed reliance upon Jain Narain and Ors. v. Union of India and Ors. . According to the learned counsel, while issuing such a writ of or in the nature of mandamus, Court in a given situation was entitled to take judicial notice of the relevant facts obtaining at the material time.
12. Learned counsel for the respondents would contend that it is evident from the records that there does not exist any access to the police station, and, in that view of the matter this Court should not exercise its jurisdiction. Learned counsel has drawn our attention to the fact that order dated 24th October 2000 was passed by this Court, inter alia, on the basis of the report of the committee, who took more than one hour thirty minutes to find out location of the police station. Learned counsel would urge that police station must have an easy access not only for benefit of the public at large but also having regard to the nature of the duties and functions required to be performed by the authorities. Learned counsel would contend that delay and laches on the part of their officers and/or passage of time by itself may not stand in the way of invoking the emergency clause and in fact passage of a long time itself may be considered to be a relevant criteria therefore. Strong reliance in this connection has been placed on Chameli Singh and Ors. v. State of U.P. and Anr. ; Union of India and Ors. v. Praveen Gupta & Ors Smt. Shakuntala B. Modav.
Union of India and Ors.
S.S. Darshan v. State of Karnataka and Ors. ; A.O. Sareen and Ors. v. State of U.P. and Ors. ; State of U.P. v.
Smt. Pista Devi and Ors. ;
Deepak Pahwa etc. v. Lt. Governor of Delhi and Ors. .
13 It was submitted that the satisfaction arrived at by the authorities being a subjective one, the Court would have little role to play in the matter. Learned counsel would contend that it is not in dispute that the DDA had been making requests for a long time for acquisition of 1 bigha 19 biswas of land and after order of this Court in Criminal Writ No. 604/00, inspections had been made and emergency clause had been invoked only in respect of 307 sq. yds of lands. Learned counsel would contend that there are enough materials on record to show that despite Court's order the authorities have applied their independent mind and, in that view of the matter, the impugned Notification cannot be held to be bad in law. Our attention, in this connection, has been drawn to the fact that even the DDA had also been showing existence of urgency for acquiring the land.
14. The said Act was enacted to amend the law for acquisition of land needed for public purpose.
15. Before proceeding to consider the matter, we may notice the relevant provisions of the Land Acquisition Act, viz., Section 4, 5A, 6, 17(1) and 17(4), which read as follows:
"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 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 the 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 workman, 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 crops, fence or 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.
5-A 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 (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 be entitled to claim an interest in compensation if the land were acquired under this Act.
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 authorised 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 5A, 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, 1967, 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.
17. Special powers in the case of urgency-
(1) In cases 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.
XXXXX (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the appropriate Government may direct t hat 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).
16. The first question which falls for our consideration in these writ petitions is as to whether this Court acted without jurisdiction in passing the order dat ed 24th October 2000 in criminal Writ Petition No. 604/00. The afore-mentioned order dated 24th October 2000 is in the following terms:
"We have heard learned counsel for DDA Ms. Geeta Mittal with Mr. D.K. Saluja, Director (Planning) DDA. Ms. Mukta Gupta for the State with Mr. T.N. Mohan, DCP (Hqrs.) and Mr. Nityanand, DCP (East) and Mr. Rajiv Awasthi, Member of the Committee. We appreciate and place on record the assistance rendered by all the parties before us.
The matter was taken up today because of the urgency of the matter. The Police Station in Krishna Nagar is functioning without proper access causing great inconvenience to the public. In case of emergency, coming to the Police Station is a great problem. All along this aspect of the matter has not engaged the attention of the person concerned. Today the Delhi Development Authority (DDA) had placed on record the Proposed utilisation Plan which shows the place of access to t he Police Station from main Road that is marked red in colour. The land required for the purpose of making proper road to the Police Station from the Main road is 18 meters in width and 40 metres in length on an average.
With reference to the larger issues involved in the matter, we reserve our consideration after the authorities place on record the necessary papers. In view of the fact that matter cannot brook any delay we direct the DDA to take steps very urgently to acquire the land encircled red in the site plan. DDA shall take all the necessary steps to acquire the land with utmost dispatch and take possession of the land and handover the same to the Police Authorities on or before 30th November 2000. The matter is of utmost public interest and we are very anxious in larger public interest that the land is acquired without any delay at all. The DDA/Acquiring Authority shall be at liberty to invoke the provisions of Section 17(4) of the Land Acquisition Act invoking the urgency provision. The DDA shall take possession from the owner without any delay no further time shall be granted to the DDA for this purpose.
Matter to be listed on 1st December 2000 for compliance. dusty.
17 The said order was passed on a day, when learned counsel for the petitioner therein was not present. From a perusal of the said order, it would appear that DDA itself had produced a plan showing the place of access to the police station from the main road, which was marked red in the colour. The measurement of the road which was 18 metres in width and 40 metres in length on an average had also been stated. The said order does not record any reason. Nothing has been placed before us to show a nexus between the said order and the prayer made in the writ petition.
18. Admittedly the petitions were not parties to the said criminal writ petition (CWP 604/00). However a copy of the said petition is available on record. The said writ petition had been filed for issuance of a writ of mandamus/certiorari directing the respondents to make proper arrangements to hold the Courts of S.E.M./D.C.P., who were conducting the trial of externment proceedings under Section 47/48/50 of Delhi Police Act and S.E.M./A.C.P. and under Section 107/150 of Code of Criminal Procedure (in short "Cr.P.C."). No nexus thus appears to exist between prayers made in the said criminal writ petition and the interim order passed. We fail to understand as to why the committee, which was appointed to consider the working conditions of the courts, would make an enquiry and/or submit a report as regards accessibility of the Krishna Nagar Police Station. On 11th October 2000 a Division Bench recorded as under:
"Because as it exists the access to Police Station is very difficult. If any untoward incident happens the police officials cannot come for help immediately nor public can reach the police station Krishna Nagar easily. Hence it must be ensured that Police Station is easily accessible from the main road. Report of the committee shows that to trace this police station itself was a big job. What is the use of such a police station if it is not accessible to people. Hence DDA has to ensure direct passage to police station".
19. Thereafter allegedly a detailed hearing was conducted, when Mr. T.N. Mohan, DCP(Hqrs.), Mr. Nityanand DCP(East), Mr. Rajiv Awasthi, Member of Committee and Mr. D.K.Saluja, Director (Planning) and counsel for the State were present.
20. In a Public Interest Litigation, the Court can issue directions, where the statutory authorities act in violation of law or fail to perform their statutory duties. In certain situations, the Court is also entitled to issue directions, which would not be in conflict with the statutory provisions.
21. But a Public Interest Litigation should be kept confined to the prayers made and its scope should not unduly be enlarged, unless there exists cogent and sufficient reasons therefore. The Court in certain situations, undoubtedly, may exercise power which the Statutory authorities in their discretion can pass, as has been held by the Apex Court in The Comptroller and Auditor General ofIndia, Gian Prakash and Anr. v. K.S. Jagannathan and Anr. , but such an order must be passed in rare cases. The Court ordinarily would allow the statutory authorities to perform their duties at the first instance. In State of W.B. and Ors. v. Nuruddin Mallick and Ors. , such a prayer of the respondent, that the Supreme Court itself should exercise its discretion, was turned down stating as follows:
"28. It is not in dispute in this case that after the management sent its letter dated 6-8-1992 for the approval of its 31 staff, viz., both teaching and non-teaching staff, both the District Inspector of Schools and the Secretary of the Board sought for certain information through their letters dated 21-9-1992. Instead of sending any reply, the management filed the writ petition in the High Court, leading to passing of the impugned orders. Thus, till this date the appellant-authorities have not yet exercised their discretion. Submission for the respondents was that this Court itself should examine and decide the question in issue based on the material on record to set at rest the long-standing issue. We have no hesitation to decline such a suggestion. The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter."
30. On a perusal of the impugned order, we do not find that any consideration was given in the impugned orders on the issue in question. This apart, the High Court disposed of the main appeal on the date not fixed for the same, while disposing of the application. It seems that in the background of the anxiety of the management, in view of the various proceedings undertaken including contempt proceedings for implementing the learned Single Judge's order, the Court instead of adverting to the question in issue, concentrated more to see the said 31 persons be approved within the specified time. As we have held above, without the statutory authority applying its mind for their approval and the impugned order not adjudicating the issue in question how could the impugned orders be sustained. The remote suggestion by the learned counsel for the respondents of mala fide also cannot stand as we do not find, firstly, any such allegation on record nor has any such person by name been imp leaded as a party."
22. However there cannot be any doubt whatsoever that the Supreme Court has discretion in such matters to pass such orders as it may think fit and proper under Article 142 of the Constitution of India for doing complete justice to the parties. There cannot, furthermore, be any dispute whatsoever that property of an individual can be acquired by the State in exercise of its power of eminent domain. Article 300A of the Constitution in turn mandates that no person shall be deprived of his property except in accordance with law. A rightful owner thus cannot be deprived of his property and/or enjoyment thereof unless the provisions of the Land Acquisition Act are strictly complied with. It is trite that the High Court may quash a land acquisition proceedings if the requisite procedures therefore are not complied with.
23. It is also trite that an order ordinarily would not be passed by a Court of law in violation of the principles of natural justice, as a result whereof, the right of a non-party may be affected. A judgment/order of the Court, it is well settled, would not ordinarily be binding upon a person who is not a party thereto. There cannot be any doubt that in a situation of this nature no order could have been passed, without giving an opportunity of hearing to the petitioner. In any event, an interim order in mandatory from as has been passed in the instant case could not have been passed at an interlocutory stage.
24. The order dated 24th October 2000 furthermore clearly shows that no sufficient and cogent reason has been assigned in support thereof. Assignment of reasons in support of a judicial or quasi judicial order is imperative. In Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India and Anr. , it has been held as follows:
"Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned counsel appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this court ending with N.M.Desai v. Testeels Ltd., C.A.No.245 of 1970 decided on 17-12-1975 (SC). But unfortuantley, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law".
Reference in this connection may also be made to Paul George v. State reported in J.T. 2002(1)SC 226.
25. A writ in the nature of mandamus can only issue, when there exists a legal right in the petitioner and a corresponding legal duty in the respondent. Existence of a legal right in the petitioner in obtaining an order for acquisition of land that too by invoking the emergency clause did not exist. D.D.A. is a State within the meaning of Article 12 of the Constitution of India. It was its duty as a benevolent litigant to point out that such an order should not be passed in absence of the petitioner. No independent reason has been assigned as to why urgency clause should be invoked in the exigencies of the circumstances. the themselves did not take recourse to their statutory powers. Nobody prevented them form doing so. No legal proceedings was pending forbidding them from taking recourse thereto. No order of injunction was operative. The rights of the authorities might have been determined in a suit but the same did not preclude the respondents from invoking the provisions of the Land Acquisition Act. If the situation was so grave as is sought to be pretended there was absolutely no reason as to why the provisions of the said Act had not been taken recourse to earlier.
26. In Mansukhlal Vithaldas Chauhan's case (supra) the Apex Court in a different context, held that the power of Court to issue a writ of mandamus directing the competent authority to pass an order of sanction does not exist. It said:
"22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory.
Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words "shall" or "must". But this is not conclusive as "shall" and "must" have sometimes, been interpreted as "may".
What is determinative of the nature of duty, whether it is obligatory, mandatory or director, is the scheme of the statute in which the "duty" has been set out. Even if the "duty" is not set out clearly and specifically in the statute, it may be implied as correlative to a "right".
23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion.
Upon consideration of various decisions and authorities the Court held as follows:
"32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant' whether the complaint of Harshadari of illegal gratification which was sought to be supported by "trap" was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Government that the firm had been blacklisted once and there was demand for some amount to be paid to the Government by the firm in connection with this contract. The discretion not to sanction the prosecution was thus taken away by the High Court.
33. The High Court put the Secretary in a piquant situation. While the Act gave him the discretion to sanction or not to sanction the prosecution of t he appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to an action in contempt for not obeying the mandamus issued by the High Court. The High Court assumed the role of the sanctioning authority, considered the whole matter, formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be treated to be an order passed by the Secretary and not that of the High Court. This is a classic case where a brand name is changed to give a new colour to the package without changing the contents thereof. In these circumstances, the sanction order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court."
27. The observation of the Supreme Court in Jai Narain and Ors. etc. etc. v. Union of India and Ors. whereupon strong reliance has been placed by Ms. Geeta Mittal and Ms. Geeta Luthra is not applicable in the facts of the present case. Therein the land was acquired by exercise of independent application of mind by the authority. One of the questions, which was raised before the Apex Court was, as to whether the provisions of Section 17 could be invoked. In the notification the expressions "likely to be needed" was used. The Court while answering the question in the afore-mentioned case not only took into consideration the language of the said provision but also held that such sewage treatment plant for which the land was sought to be acquired had been directed to be installed by the Apex Court itself. In that situation the Apex Court held as follows:
"13. So far as the second contention raised by Mr. Vashisht, the same is mentioned to be rejected.
Whatever may be the user of the land under the Master Plan and the Zonal Development Plan the State can always acquire the same for public purpose in accordance with the law of the land. In any case the object and purpose of constructing the STP's is to protect the environment, control pollution and in the process maintain and develop the agriculture green."
28. The Court held that existence of an urgency can be taken judicial notice of.
29. In the instant case, the right of the respondent to issue such a notification itself is in question. It is not a case where the petitioners are questioning an order passed by a competent court in a collateral proceeding although in a given situation it is permissible. The petitioners are entitled to question the notification issued by the State on the ground that the same could not have been passed relying on and on the basis of the order of the Court, wherein they were not parties. There cannot be any doubt whatsoever that the petitioners are not bound by the orders of the Court as they were not parties thereto. In this view of the matter, we are of the opinion that the order dated 24th October 2000 passed in Criminal Writ No.604/00 was not binding upon the petitioners, as having been passed without jurisdiction, the same is a nullity. It is now a well settled principle of law that the Court itself and particularly a Larger Bench can review its earlier order. Having regard to the principle of Actus Curiae Neminem Gravabit (the act of the Court shall prejudice no one) when the statutory/constitutional right of the petitioner has been infringed by an order of the Court, the Court will not hesitate to withdraw or review such order. In A.R. Antulay v. R.S.Nayak and Anr. a Bench of seven Judges of the Supreme Court held that the principle of Actus Curiae Neminem Gravabit is founded upon justice and good sense and affords a safe and certain guide for the administration of law. The Apex Court while dealing with the contention as to whether the order passed by a regular court of unlimited jurisdiction can be set aside, observed as follows:
"78. The Privy Council in Issacs v. Robertson (1984) 3 All ER 140 held that orders made by a Court of unlimited jurisdiction in the course of contentious litigation are either regular or irregular. If an order is regular it can only be set aside by an appellate Court; if it is irregular it can be set aside by the Court that made it on application being made to that Court either under rules of Court dealing expressly with setting aside orders for irregularity of ex debito justitiae if the circumstances warranted, namely where there was a breach of the rules of natural justice etc. Shri Jethmalani urged before us that Lord Diplock had in express terms rejected the argument that any orders of a superior court of unlimited jurisdiction can ever be void in the sense that they can be ignored with impunity. We are not concerned with that. Lord Diplock delivered the judgment. Another Judge who sat i the Privy Council with him was Lord Keith of Kinkel. Both these law Lords were parties to the House of Lords judgment in Re Racal Communications Ltd. case (1980) 2 All ER 634 and their Lordships did not extend this principle any further. Shri Jethmalani submitted that there was no question of reviewing an order passed on the construction of law. Lord Scarman refused to extend the Anisminic principle to superior Courts by the felicitous statement that this amounted to comparison of incomparables. We are not concerned with this controversy. We are not comparing incomparables. We are correcting an irregularity committed by court not on construction or misconstruction of a statute but on non-perception of certain provisions and certain authorities which would amount to derogation of the constitutional rights of the citizen.
79. The directions given the order of 16th February, were certainly without hearing though in the presence of the parties. Again consequential upon directions these were challenged ultimately in this Court and finally this Court reserved the right to challenge these by an appropriate application."
30. Ranganath Misra, J. (as the learned Chief Justice then was) in his concurring judgment observed as follows:
101. Once it is found that the order of transfer by this Court dated 16th of February, 1984 was not within jurisdiction, by the direction of the transfer of the proceedings made by this Court, the appellant should not suffer."
31. The afore-mentioned first question is thus, answered.
32. We now come to the question as to whether the impugned notification suffers from the vice of non-application of mind on the part of the acquiring authority?
33. The order of this Court was passed on 24th October 2000. On 27th October 2000 the Vice Chairman of DDA by a letter addressed to the Principal Secretary (lands) stated as under :
"Kindly refer to the letters dated 18.5.87, 25.7.89, 23.3.94, 29.7.94 and 8.8.95 regarding acquisition of land measuring 1 bigha 19 biswas of village Chandrawali alias Shahdara. The said land is urgently required for the passage to the land allotted to Delhi Police. The Hon'ble High Court of Delhi in a public interest criminal writ petition No. 604/00 on 24.10.2000 has directed the DDA to acquire the land Under Section 4, 6 read with Section 17(iv) of the Land Acquisition Act and hand over the possession of the land to Delhi Police on or before 30.11.2000 and the case has been fixed for submitting the compliance report on 1.12.2000. Copies of the earlier reference and the Court orders are enclosed for facility of reference.
I shall be grateful if you could kindly look into the matter personally and get the notification issued on priority basis so that the compliance report is submitted to the Hon'ble Court before the date of hearing."
34. The said letter was replied by the Principal Secretary (Lands) addressed to the Vice Chairman DDA by a letter dated 5th December 2000 in the following terms:
"Please refer to your D.O. letter No.F.14(43)/69/CRC/DDA/244 dated 27.10.2000 for acquisition of land bearing Kh. No. 573 measuring 1-19 bigha of village Chandrawali @ Shahdara to provide passage to the land allotted to the Delhi Police. In view of the orders of the High Court, approval of the L.G. has already been obtained for issuance of notification under Sections 4, 6 and 17(1) of the Land Acquisition Act, 1894. Notification under Section 4 has also issued on 29.11.2000. ADM/LAC (East) vide his letter dated 27.11.2000 (copy enclosed) has intimated the 80% compensation amount to be Rs. 8,18,926/-. The cost of structures/properties is to be evaluated after proper survey by the PWD Department. Normally we issue Section 6 notification on receipt of 80% of the estimated compensation amount. In view of the High Court's orders, however, we have already issued notifications under Section 6 and 17(1) of the Land Acquisition Act.
You are, therefore,now requested to urgently arrange to remit the 80% compensation amount.
(Emphasis supplied by us)
35. Ex facie, therefore it would appear that the impugned notification had been issued because of the order passed by this Court.
36. As indicated hereinbefore, the lands in question were measured and a plan therefore was submitted, wherein lands sought to be acquired, were delineated with colour red. The Court issued the direction pursuant thereto. Even from the note-sheet dated 22nd November 2000, it appears that Joint measurement had been done pursuant to the direction of this Court. The records have been produced before us which do not show any independent application of mind on the part of the acquiring authority. No independent satisfaction has been arrived at. Contrary to the practice, even 80% of the amount which was to be awarded was not paid to the petitioner before issuing the impugned notification. Records, on the contrary, suggest that all actions had been taken pursuant to the order of the court. It may be noted that the requisition of the DDA was pending but such requisition was for 1 bigha 19 biswas in Khasra No. 573. There is nothing on record to show that there had been any application of mind to the effect that only 307 sq. yds. lands are necessary to be acquired. Had there been any independent application of mind, the appropriate authority would have come to a definite conclusion that the request of the DDA to acquire the entire land is not correct and the public purpose would be served by acquiring 307 sq. yds of lands only. The impugned notification does not say so. Furthermore, requirement was of the DDA and not of the Land Acquisition Collector. Having regard to the facts and circumstances of this case, we are, therefore, of the opinion that it is not a case where the provisions of Section 17 of the Act should have been taken recourse to.
37. According to the petitioners there exists alternative route. Had no opportunity of hearing been given, the petitioners could show that in the public interest other lands shall be acquired as having a better potentiality to be used as access to the Police Station. In Jnanedaya Yogam and another (supra), the law has been stated in the following terms.
"We may now proceed to consider the legality of the impugned acquisition. In our view, on the peculiar facts of this case, basic requirements of Section 40, Sub-section (1)(b) of the Act are not met at all. The reason is obvious. The site plan placed before us by both sides, and on which there is no dispute, shows that, the main road over which the procession has to proceed on spot is on the northern side. The respondent No. 1's disputed land is situated on the southern side of the main road. There is a fence put up by the respondent over her land and leaving the compound land the respondent has put up a residential house in one corner of her land and there is a row of shops built up by her facing the main road towards the north just touching the main road on the Northern side. The last shop touching the main road is constructed on the disputed land which is sought to be acquired. The destination of the procession is on further southern side of the respondent land. For reaching that destination where the procession has to end and the idol has to be taken down from the elephant's back for carrying out the religious ceremony, the procession has necessarily to go through the open land adjoining the respondent's compound land. The respondent's learned counsel, on instructions, made it clear that the respondent will have no objection in allowing the procession along with the elephant to go through the open land in her compound for approaching the southern side and for reaching the destination. For that purpose, instead of cutting across her last shop in the row, the procession can divert its route by five to ten feet on further right hand side while going towards South and can go through her compound land for reaching the destination. This little diversion of the road may save her shop without in any way hindering the procession for reaching the destination. In court view, the said stand of the respondent is quite fair. In fact, such an alternative route could have been suggested before the acquiring authorities, however, as procedure of Section 5A of the Act was dispensed with, the acquiring authorities got no opportunity to consider the alternative route suggested by her, it is obvious that such an alternative route would have satisfied the requirements underlying the acquisition proceedings for ensuring a convenient passage for the procession along with the elephant. Such procession could have easily utilised such alternative route without disturbing and cutting across the respondent's existing shop on spot. When we put this to the learned Senior Counsel for the appellants, he stated that on principle there may not have been any objection on this aspect but for the fact that astrologers consulted by the appellant temple have advised that the route of the procession cannot be changed and it is only the old route which is a sanctified route. Now it is easy to visualise that this stand of the appellant clearly shows that the so-called need for having the passage for the movement of the elephant and the procession only through the acquired land after demolishing respondent No. 1's shop is not a genuine need of the temple or for that matter of the members of the public, who are the devotees and who would join in the procession every year".
38. In Om Prakash's case (supra) the Apex Court in the fact situation obtaining therein held:
"16. In the light of the aforesaid factual position emerging on the record of the case, it becomes clear that there was no relevant material before the State authorities when it invoked powers under Sub-section (4) of Section 17 for dispensing with Section 5A inquiry while issuing the impugned notifications under Section 4 followed by Section 6 notification of 7th January 1992.
39. Thus, when no material is shown to be existing establishing the ground for invoking the emergency clause, the same cannot be sustained.
40. In the afore-said case the Apex Court held that satisfaction had to be recorded even for the purpose to withdraw the acquisition in terms of Section 48 of the Act.
41. It may be true that in certain situations the Court can take judicial notice of certain facts. It is also true that when a valid notification is issued, the Court would not normally interfere with the subjective satisfaction arrived at by the acquiring authority in terms of Sub-section 4 read with Section 17 of the Act but such is not the position here.
42. Let us now take into consideration the decisions cited by the learned counsel appearing on behalf of the respondents. In Union of India and Others' case (supra) , the acquisition was made for planned development. The entire land in two villages had been acquired. It was seen that the timber business was being carried on in the walled city of Old Delhi, which became a source of traffic congestions and it was required to be shifted urgently from the existing place to relieve the congestion for public purpose, namely, establishment of timber depots. The Court was satisfied that the shifting of the timber business itself was for urgent purpose, namely, to relieve the traffic congestion in the walled city.
43. In S.S. Darshan's case (supra) , the Court came to the conclusion, that the acquisition was for public purpose. The said decision thus was rendered, keeping in view the fact situation of the said case.
44. In A.P. Sareen and Others (supra) 1997 (SC) 1284, the question arose as to whether the provisions contained in Section 5A could be directed to be taken recourse to having regard to the fact that sufficient time had lapsed after publication of notification. Such a direction had not been issued, having regard to the stand taken by the State that the acquisition was for public purpose viz. for the planned development as per plans prepared and submitted to the Government by the Ghaziabad Development Authority and in that situation the Court held that an enquiry under Section 5A was of no material consequence in the facts of that case.
45. In Chameli Singh and Others (supra) , it was held that providing housing facilities to Dalits and Tribes being duty of the State, urgency clause under Section 17(1A) and 17(4) could be invoked. In that case the Court found that there id not exist any pre-notification and/or post-notification delay on the part of the officers to finalise and publish the notification.
46. The observations to the effect that larger the delay greater be the urgency appears to have been made having regard to the unhygienic conditions and deplorable housing needs of Dalits, Tribes and the poor which continued to subsist. The said opinion was held to have been formed by the Government on the basis of its constitutional or international obligation and as such the Court did not disturb the findings on the ground that the plea of mala fide was not established.
47. In Smt. Shakuntala B. Moda's case (supra) , a Division Bench of this Court held that mere omission of the word "urgency" did not render the notification illegal if such urgency can be shown otherwise by the words used in the notification. No exception to the said preposition of law can be taken.
48. In Deepak Pahwa etc. (supra) the Court, in the facts of the case, held that gap of time between publication of notification and public notice of substance is not always fatal. In State of U.P. (supra) 1986 SC 2025 it has been held by the Apex Court that in the absence of a plea of mala fide, delay of one year between publication of notification under Section 4 and 6 was by itself not sufficient so as to render decision of the State Government illegal. However, in the instant case as noticed hereinabove the petitioner herein has been deprived of their valuable right for a long time.
49. Having regard to the fact that there had been no independent application of mind, we are of the opinion that the impugned notification cannot be sustained. It is set aside accordingly. However, this order shall not preclude the appropriate authority to apply it sown independent mind and take appropriate steps in the matter in accordance with law.
50. Writ petitions are allowed. Impugned orders are set aside. Petitions are allowed with costs.