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CASE NO.:

Appeal (civil) 4656 of 1999

PETITIONER:

DELHI ADMINISTRATION

RESPONDENT:

GURDIP SINGH UBAN AND ORS. ETC.

DATE OF JUDGMENT: 18/08/2000

BENCH:

S.B. MAJMUDAR & M. JAGANNADHA RAO

JUDGMENT:

JUDGMENT

2000 Supp(2) SCR 496

The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J, Krishna Iyer. J. said that "A plea for review unless

the first judicial view is manifestly distorted, is like asking for the

moon". (Northern Indict Caterers (I) Ltd, v. Li. Governor of Delhi, (1989)

2 167 (173)]. That is the precise position in ihese applications. Applicant

is Sri Gurdip Singh Uban, the respondent in the main appeals, who

questioned the acquisition of his land in village Chatrapur, near Delhi.

These IAs, are filed in the following circumstances, after dismissal of the

Review Petition on 24.11.99,

The Civil Appeals 4656-4657/99 were disposed of by this Court, by a Bench

of two Judges on 20.8.99 (Delhi Administration v. Gurdip Singh Uban, [1999]

7 SCC 44) and the appeals of Delhi Administration and Delhi Devel-opment

Authority were allowed. The appellant in C.A. 4656/99 was the Delhi

Administration while the appellant in C.A. 4657/99 was the Delhi Develop-

ment Authority. The appeals were allowed and the judgment of the High Court

of Delhi in CWP. 920 of 1986 dated 17.12.96 was set aside and she said writ

petition was dismissed. This Court followed the judgment of a three Judge

Bench in Abhey Ram v. Union of India, [1997] 5 SCC 421 relied upon by the

appellants in preference to the judgment of a two Judge Bench sn Delhi

Development Authority v, Sudan Singh, [1997] 5 SCC 430, relied upon by the

Ist respondents-writ petitioners (applicant in these IAs). The writ

petitioners before the High Court were Mr. Gurdip Singh Uban, Mrs. Har

Sharan Mishra and Mrs. Har Kiran and (hey were respondents in both Civil

Appeals. The result was that reversing the High Court's judgment the land

acquisition pro-ceedings were upheld by this Court,

After the appeals were allowed by this Court on 20.8.99 as stated above.

Review Petitions Nos. 1402-1403/99 were filed in the two Civil appeals by

Sri Gurdip Singh Uban and they were dismissed in circulation by a reasoned

order on 24.11.99. (Another Review Petition No. 21/2000 filed by Mrs. Har

Kiran Commar is yet to be circulated.

So far as Mrs. Har Kiran Commar is concerned, she filed IA, 3 on 4.11.99,

before the dismissal of Review Petition of Sri Gurdip Singh Uban on

24.11.99. Her IA came up before another Bench of this Court on 3,12.99. By

that date, Review Petition of Gurdip Singh Uban was dismissed on 24.11.99

by this Bench, as stated earlier. Therefore, the court before which the IA.

3 was listed, directed the Review Petition of Mrs. Har Kiran Commar to be

placed before this Bench which disposed of the Review Petition of Mr.

Gurdip Singh Uban. IA. 3 was for the following reliefs : (i) to direct the

matter to be referred to a larger Bench in view of certain alleged conflict

between Abhey Ram v. Union of lndia,[1991] 5 SCC 421 and some judgments of

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1968 and 1991; (ii) for modification of the order dated 20.8.1999 to allow

the said Gurdip Singh Uban to submit a representation to the authority for

releasing the land from land acquisition and (iii) clarify that the

applicant was free to approach the authority and the judgment was to be

modified to that extent. (We shall deal with this IA under Point 8).

By 31.1.2000, when the IA. 3/99 was again listed before this Bench, two

other IAs. 4 and 5 were tiled on 23.12.99 by Sri Gurdip Singh Uban himself,

in spite of dismissal of his review petition on 24.11.99, IAs. 4 and 5 were

filed as a composite application for reliefs (i) to (x) set out therein.

The principal reliefs were to direct the Civil Appeals 4656-4657 to be

heard by a larger Bench because of the conflict between Abhey Ram and Sudan

Singh, to direct the matter to be placed before a Constitution Bench in

view of Udai Ram Sharma v. Union of India, [1968] 3 SCR 41, and to recall

the order dated 24.11.99 passed in the review petitions, to modify the

order dated 20.8.99 passed in the main CA, and to permit the applicant to

make representation to the authority for release of the land, to declare

the land acquisition proceedings as having lapsed, set aside the

acquisition proceedings and to give benefit of section 10 of the Indian

Soldiers (Litigation) Act, 1925.

Writ Petition No. 155 of 2000 was filed on 5.4.2000 by one Rajinder Pal

Singh questioning the validity of an order dated 17.11.99 and circular

dated 7.12.99 issued by the authority subsequent to the main judgment in

Civil Appeals dated 20.8.99 and for restraining the authority from taking

any action against the petitioner's land in village Raipur Khurd, as the

land acquisition proceedings had allegedly lapsed. (We shall deal with this

writ petition under Point 7). We shall first deal with As, 4 and 5 filed by

Sri Gurdip Singh Uban,

When these applications 4 and 5 were listed before us finally for argu-

ments, learned Solicitor General, Sri Harish N. Saive raised a preliminary

objection that these applications couched as applications for

'clarification', 'modification' or for 'recall' could not be entertained

once the Review petitions filed by the applicant were dismissed. He

contended that there must be some finality somewhere. These petitions

amounted to filing a second review, which was not permissible under the

Rules, In any event, a hearing of the case in open Court could not be

granted in these IAs. to recall order in the review petition, if the main

review petition itself had to be dealt with in circulation. According to

Sri Salve, these IAs. were an abuse of the process of Court.

On the other hand. learned counsel for the applicant Sri Shanti Bhushan

submitted that this was a case where grave injustice would take place if

the judgment of this Court in Civil Appeals dated 20,8,99 was allowed to

stand without being reviewed or recalled. It was brought to our notice that

the applicant had constructed a building pending proceedings pursuant to a

letter issued by the DDA in favour of the applicant on 6.2.96 -representing to the applicant that the land acquisition proceedings stood

quashed by an earlier judgment of the Division Bench of the High Court of

Delhi and permit-ting him to construct the building. This representation

was acted upon and a building was constructed and it was argued that hence

a clear case of estoppel arose.

In reply, learned Solicitor General Sri Harish N, Salve submitted that

first this Court must declare that such applications for 'clarification,

modification or recall' could not be allowed to be filed endlessly after

review applications were dismissed and that we must put an end to this

unhealthy practice. This part of the legal position must, according lo him,

be firmly laid down. Once that is done, he could by way of consent, if need

be, even accept that in the peculiar facts of this case and in particular

in view of the letter of the DDA dated 6,2.96, this Court could issue

suitable directions for exercise of power under Section 48 of the Land

Acquisition Act to a limited extent of saving the building. As to the

extent to which he made the concession, he put it in writing before the

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Court on 16,8.2000 and we shall refer lo it under Point 6. In other words,

this Court could give a direction that the orders passed by this Court in

the Civil Appeal or Review Petition would not come in the way of the

respondents considering any representation by the applicant for release of

part of the !and under Section 48, Counsel, after having making elaborate

submissions earlier on various dates, filed written submissions on

16.8,2000.

The following points arise for consideration .

(1) Whether a party who had lost his case in Civil appeal could be

permitted to by-pass the procedure of circulation in Review matters and

adopt the method of filing applications for 'clarification', 'modification'

or 'recall' of the said order in Civil Appeals so that the mailers were not

sted in circulation but could be listed in Court stra ghtawiy? Whether such

applica-tions could be filed even after dismissal of review applications?

What is the procedure that can be followed in such cans?

(2) Whether, in any event, the judgment of this Court dated 20,8.99

allowing the appeals of the Delhi Administration and Delhi Development

Authority was liable to be set aside on merits, treating this as the first

review petition, and whether such a relief could be granted on the ground

that the two Judge Bench of this Court in these Civil appeals which

followed Abhey Ram {decided by three learned Judges) should have referred

Abhey Ram to a larger Bench?

(3) Whether the order of the Division Bench in Balak Rum Gupta's case,

where there arc two orders, the order dated 14,10.88 allowing the writ

petitions in 73 Civil Writ petitions (reasons to follow) controlled the

subsequent order passed in those cases on 18.11.88 containing the reasons

and whether in the latter order, the High Court could have quashed land

acquisition proceedings in writ petitions which were not before them?

(4) Whether under section 6 of the Land Acquisition Act, while dealing with

an inquiry report under section 5A, the Government (here the Lt. Gov-ernor)

is required to give elaborate reasons?

(5) To what extent could a person who had not filed objection in section 5A

inquiry challenge the section 6 declaration?

(6) Whether any relief could be granted under section 48 of the Act in the

light of the letter of the DDA dated 6.2.96 in the light of the fair stand

taken by the learned Solicitor General and, if so, to what extent?

(7) Whether in the writ petition 155 of 2000, the subsequent order of the

Department dated 7.12.99 was liable to be set aside?

(8) Whether 1A 3 filed by Mrs, Har Kiran Commar for 'recall' of the order

dated 20.8.89 in the Civil Appeal is to be considered in open Court even

though her Review Petition No. 21/2000 is pending before this Court and is

yet to he circulated?

POINT I.

It is first necessary to refer to the well-known concept that a review is

not a re-hearing and point out that its scope is very narrow. Order XL,

Rule (1) of the Supreme Court Rules provides as follows :

"The Court may review its judgment or order but no application for review

will be entertained in a civil proceedings except on the grounds mentioned

in Order XLVII, Rule J of the Code and in a criminal proceedings except on

the ground of an error on the face of the review."

In Thungabhara Industries Ltd. v. Government of Andhra Pradesh, [1964] 5

SCR 174, this Court stated that there was a real distinction between a mere

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erroneous decision and a decision which could be characterised as vitiated

by 'error apparent' and that a 'review' was by no means an 'appeal' in

disguise. This legal position was reiterated in subsequent judgments of

this Court.

At the outset, we have to refer to the practice of filing review

applications in large numbers in undeserving cases without properly

examining whether the cases strictly come within the narrow confines of

Rule XL of the Supreme Court Rules. In several cases, it has become almost

everyday experience that review applications are filed mechanically as a

matter of routine and the grounds for review are a mere reproduction of the

grounds of special leave and there is no indication as to which ground

strictly fails within the narrow limits of the Rule XL of the Rules. We

seriously deprecate this practice. If parties file review petitions

indiscriminately, the time of the court is unnecessarily wasted, even if it

be in chambers where the review petitions arc listed. Greater care,

seriousness and restraint is needed in filing review applications.

We next come to applications described as applications for 'clarifica-

tion', 'modification' or 'recall' of judgments or orders finally passed. We

may point out that under she relevant rule XL of the Supreme Court Rules,

1966, a review application has first to go before the learned Judges in

circulation and it will be for the Court lo consider whether the

application is to be rejected without giving an oral hearing or whether

notice is to be issued.

Order XL. R.3 states as follows ;

"O.XL.R.3 : Unless otherwise ordered by the Court, an application for

review shall be disposed of by circulation without any arguments, but the

petitioner may supplement his petition by additional written argu-ments,

The Court may either dismiss the petition or direct notice to the opposite

party......"

In case notice is issued, the review petition will be listed for hearing,

after notice is served. This procedure is meant to save the time of Court

and to preclude frivolous review petitions being filed and heard in open

Court. How-ever, with review a view to avoid this procedure of 'no

hearing', we find that sometimes applications are filed for

'clarification', 'modification' or 'recall' etc. not because any such

clarification, modification is indeed necessary but because the applicant

in reality wants a review and also wants a hearing, thus avoiding listing

of the same in Chambers by way of circulation. Such appli-cations, if they

are in substance review applications, deserve to be rejected straightway

inasmuch as the attempt is obviously to by-pass O.XL.R3 relating to

circulation of the application in Chambers for consideration without oral

hearing. By describing an application as one for 'clarification' or

'modifica-tion', - though it is really one of review - a party cannot be

permitted to Circumvent or by-pass the circulation procedure and indirectly

obtain a hearing in the open Court, What cannot be done directly cannot be

pemitted to be done indirectly. (See in this connection a detailed order of

the then Registrar of this Court in Sonelal and Ors. v, State of U.R,

[1982] 2 SCC 2.98 deprecating a similar practice).

We, therefore, agree with the learned Solicitor General that the Court

should not permit hearing of such an application for 'clarification',

'modifica-tion or 'recall' if the application is in substance one for

review. In that event, the Court could either reject the application

straightaway with or without costs or permit withdrawal with leave to file

a review application to be listed intially in Chambers.

What we have said above equally applies to such applications filed after

rejection of re-applications particularly when a second review is not

permis-sible under the rules. Under Order XL. R5, a second review is not

permitted. The said Rule reads as follows :

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"O.XL.R5 : Where an application for review of a Judgment or order has been

disposed of, no further application for review shall be entertained in the

same matter." We should not, however, be understood as saying that in no

case an application for 'clarification', 'modification" or 'recall' is

maintainable after the first disposal of the matter. All that we are saying

is that once such an application is listed in Court - the Court will

examine whether it is, in sub-stance, in the nature of review and is to be

rejected with or without costs or requires to be withdrawn with leave to

file a review petition to be listed in Chambers by circulation. Point 1 is

decided accordingly.

POINTS 2 AND 3 :

We now come to the main points raised in these applications. Though, in the

light of what we have said under point 1 and when particularly these IAs 4

and 5 are filed by Sri Gurdip Singh Uban after dismissal of the review

petitions, they deserve to be rejected, we felt that in view of the

pendency of another Review Petition 21/2000 - by another party Mrs. Har

Kiran Commar (who was not a petitioner in Review Petitions 1402-1403/99)

arising out of the same judgment in Civil Appeal wherein the same questions

are raised (and which review petition is yet to be circulated), we could as

well deal with matter on merits as if we are dealing with the first review

and give a quietus to these questions. We are also no! going into the

question of error apparent because we want to give a quietus to these

issues. To this course, respondents have agreed that we may deal with the

points on merits so as to put an end to the questions.

Learned senior counsel for the appellant, Sri Shanti Bhushan initially made

a vehement plea for 'justice''and contended that in every case where there

was 'injustice', this Court should not feel shackled by rules of procedure

nor constrained by the limited scope of a review application. We are unable

to agree.

The words 'justice' and 'injustice', in our view, are sometimes loosely

used and have different meanings to different persons particularly to those

arrayed on opposite sides. "One man's justice is another's injustice"

(Ralph Waldo Emerson, Essays, (1803-1882) first series, 1841 'Circles').

Justice Cardozo said : "The web is tangled and obscure, shot through with a

multitude of shades and colours, the skeins irregular and broken. Many hues

that seem to be simple, are found, when analyzed, to be a complex and

uncertain blend. Justice itself, which we are wont to appeal to as a test

as well as an ideal, may mean different things to different minds and at

different times. Attempts to objectify its standards or even to describe

them, have never wholly succeeded." (Selected Writings of Cardozo,

PP.223-224, Fallon publi-cations, 1947),

While the man who succeeds may think justice is on his side, the man who

loses is prone to think that injustice has been done to him. Most litigants

who have not won, presume that injustice has been unreasonably inflicted

upon them. Their approach is subjective and personalized. Therefore, this

appeal by Sri Shanti Bhushan for 'justice' can take us nowhere. The State

and the DDA which are on the other side are impersonal bodies and if they

are exercising statutory powers for public good and acquiring land for

public purposes, the Court has to balance the rights of parties and this

has to be done within the four corners of the law. We are not lay courts

meting out justice according to our whims and fancies but are governed by

law as well as by binding precedent

At this juncture, it is necessary to stale a few more facts leading upto

the judgment dated 20.8.99 of this Court in the Civil appeals which is

sought to be recalled.

The notification under section 4(1) of the Land Acquisition Act for the

planned development of Delhi was issued on 25.11.80 and it covered 13

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villages but the bulk of the land was in 12 villages and covered around

50,000 bighas. The acquisition in these 12 villages was questioned in a

batch of writ petitions and initially the matter was referred, on a

question of law, to a Full Bench of the Delhi High Court which gave its

opinion on 25.7.1987 (vide Balak Ram Gupta v. Union of India, AIR (1987)

Delhi 239 (FB). The question there was whether the section 6 declaration

dated 7.6.85 was issued in time or not. In between section 4 and section 6

notifications, there were several stay orders passed in earlier writ

petitions. The Full Bench held that, the period covered by the said stay

orders was to be excluded for the entire acquisition and for the entire

land even though the said orders were passed in some of the individual writ

petitions and that section 6 declaration was to be treated as in time.

After the Full Bench of the Delhi High Court gave its opinion on the

question of limitation, it remitted the batch of cases to the Division

Bench for deciding on other points - including the question as to whether

section 5A inquiry was properly conducted and whether section 6 declaration

was properly issued. We are told that among the writ petitions - which were

more than 70 - there were some where the petitioners had not filed

objection in the section 5A inquiry, as in the case before us. The Division

Bench heard the arguments on the validity of the section 5A inquiry and the

section 6 declaration. On their conclusion, the Bench allowed the writ

petitions and made the "rule absolute'' by a brief order on 14.10.1988 in

each of the 73 wri! petitions in the following terms ;

"The orders of Land Acquisition Collectors under Section 5-A and the

notifications issued by the Lt, Governor under Section 6 of the Land

Acquisition Act together with further land acquisition proceedings in all

the above writ petitions are quashed and set aside with cost. There shall

be two sets of counsel's fees at Rs. 1500 each as the group of petitions

were heard mainly in the two writ petitions. The respondents have also not

filed the counter affidavits in all the petitions as it was agreed to

complete two sets of petitions with counter-affidavits. The rule is made

absolute. Reasons to follow."

But thereafter the Division Bench supplied reasons by an elaborate order

delivered on .18.11.88 (B.R. Gupta v. Union of India, (1989)37 DLT 150

(DB)). in the latter order, very wide observations were made by the Bench.

If referred to the manner in which section 5A inquiry was conducted. It

noticed that while the inquiry was conducted by one officer, the report was

submitted by another officer to the Lt. Governor, It also felt that the Lt.

Governor had not applied his mind while accepting the report. It observed

that no reasoned order was passed by the Lt. Governor in his section 6

declaration adverting to the various objections raised by each claimant. On

the said reasoning, the Bench made observations that the entire section 5 A

inquiry was vitiated in respect of all the 50,000 bighas and that the

entire section 6 notification was liable to be quashed. These sweeping

observations were made by the Division Bench when it sup-plied reasons for

its earlier operative order dated 14.10.1988.

While the State relied before us, on the earlier order dated 14.10.88 as

governing the rights of parties in each writ petition, the petitioners

before us relied on the latter order dated 18.11.88 containing reasons to

contend that the said order superseded the brief order dated 14,10.88 and

that the quashing was not restricted to the land covered by the 73 writ

petitions. In fact, another Division Bench of the High Court, in the

judgment under appeal, in the Civil Appeals 4656/99 and 4657/99 described

the latter order dated 18.11,88 of the earlier Division Bench, as a

judgment in rem, a new species beyond what is Slated in section 41 Indian

Evidence Act, 1872- That section of the Evidence Act only deals with

judgments in probate, matrimonial, admiralty and insol-vency jurisdictions

as judgments in rem. The crucial question, therefore, is whether - in a

situation where each of the seventy and odd writ petitioners of 1985

covered specific areas and the brief order dated 14.10.88 allowed the writ

petitions - the said order could be treated' as one affecting the entire

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notification under section 6 and even cases where objections were not filed

under section 5A as in the case before us. Question also arises whether the

final order dated 18.11,88 containing reasons as re-ported in B.R. Gupta v.

Union of India, (1989) 37 DLT 150 (DB), could have covered the entire area

in the 12 villages, about 50,000 bighas even with regard to the other

claimants whose writ petitions were not before the Division Bench and even

other cases where no objections were filed in Section 5A inquiry?

In our view, if the Court allows a writ petition and reasons were to follow

later, the first order allowing the writ petition and issuing the writ

absolute is the operative order. If reasons therefor are supplied later, as

a matter of con-venience, the latter order containing reasons cannot go

beyond the four corners of the rule absolute already issued.

In this connection, it is necessary to keep in mind the meaning of the

words 'rule absolute" and "rule nisi'. The words 'rufe nisi' and 'rule

absolute' are words frequently used by the High Courts every day in the

writ jurisdiction. As stated in Ramanatha Iyer's Law Lexicon (p. 1698, 2nd

Ed., Reprint, 2000) "Rule absolute' means a rule to show cause upon which,

on hearing, the Court has made a peremptory order, that the party shall do

as the rule requires.' A court may issue rule nisi initially which is in

the nature of a show cause. After hearing, the Court may discharge the rule

if it is inclined to reject the writ petition. If, on the other, the rule

is made absolute, the court order is a direction for the performance of the

act forthwith. (Quoting 3, Step. Com 628).

Obviously, in Law, the order dated 14,10.88 extracted above is the

operative order as the rule was made absolute in each of the 73 cases only.

Thus, this operative order dated 14.10.88 could apply in each of the 73

writ petitions to the land covered thereby.

We shall now refer to the controversy between the three Judge ruling in

Abhey Ram and the two Judge ruling in Sudan Singh.

In the writ petition out of which the present Civil appeals arose filed by

Gurdip Singh Uban and others, namely, CWP.920/86, the Division Bench of the

High Court of Delhi in its order dated 17.12.96 applied the latter order

dated 18.11.88 passed in Balak Ram Gupta treating it as a judgment in rem,

and proceeded on the assumption that the 18.11,88 order had quashed the

entire land acquisition proceedings, even if the Bench was dealing only

with 73 writ petitions. On that assumption, the writ petition CWP 920/86

was allowed on 17,12.96. It is against the said judgment dated 17.12.96

that the Delhi Administration and the Delhi Development Authority filed the

two Civil Appeals 4656 and 4657/99 in this Court which came to be allowed

on 20,8.99.

By the lime arguments were heard in the two Civil appeals in the present

eases in 1999, the judgment dated 22.4.97 of three learned Judges in Abhey

Rum v. Union of India, [1.997] 5 SCC 421, which arose out of the same

notification was available to the appellants, Delhi Administration and the

DDA. The said judgment was relied upon by appellants. The respondents-writ

petitioners on the other hand contended that the case was governed not by

Abhey Ram but by an earlier two Judge judgment dated 20.9.91 in yet another

case in Delhi Development Authority v. Sudan Singh, [1997] 5 SCC 430, where

this Court had decided in favour of the claimants by referring to the

latter order of the Division Bench of the High Court dated 18.11.88 in

Balak Ram Gupta's case containing reasons, where the court said that the

entire land acquisition proceedings were quashed. But this Court, in the

present Civil Appeals 4656 and 4657 of 1999 felt bound by the three Judge

ruling in Abhey Ram. In the present IAs, it is contended that this Court

should have followed Sudan Singh.

It is true that Sudan Singh is in favour of the applicants before us in

stating that the entire land acquisition proceedings stood quashed. But we

may point out that Sudan Singh was explained in Abhey Rant and was

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distinguished In para 12 on the ground mat the brief operative order of the

High Court in Balak Ram Gupta dated 14.10.88 passed in each of the 73 writ

petitions was not noticed in Sudan Singh and that it was that order dated

14.10.88 that was material and not the wide observations in the latter

order dated 18.11.88 where reasons were given. In fact, in the judgment

under review in Civil Appeals on 20.9,99, this Court agreed with the above

reasoning in Abhey Ram and fol lowed the same in preference to Sudan Singh.

This Court also agreed with . Abhey Ram that a landowner who failed to file

objections in section 5A inquiry, could not be allowed to raise these

questions.

It is argued for the applicants that Abhey Ram was wrongly decided and

should have been referred to a larger Bench. We do not agree. We shall,

however, refer to the contentions raised in this behalf for the applicants.

A contention was raised in the written submissions of the applicants on

16.8.2000 that the operative order dated 14.10.88 in each of the 73 writ

petitions disposed of by the Division Bench does not restrict itself to the

land of the writ petitioners and it was wrongly assumed in Abhey Ram that

that order said so. Therefore, Abhey Ram is a judgment per incuriam. It is

contended that though the petitioner in each of the 73 writ petitions might

be concerned only with the piece of land owned by him, the Court could

strike down the entire notification and that it did so in the first order

dated 14.10,88 and also in the latter reasoned order dated 18.11.88.

We are unable to agree with any such generalisation. In our view, it

depends on the fact situation. Supposing it is held in one case that the

purpose is not a public purpose or that the notification under section 4(1)

is mala fide or that the notification under Section 4(1) is a colourable

exercise of power then, it can perhaps be legitimately contended that the

entire notification has been struck down and that the notification cannot

be said to be operative in cases not covered by the writ petition.

But that is not the position here. A reading of the judgment of the

Division Bench in Balak Ram Gupta dated 18.11.88 - the one containing

reasons - shows that the Court held that there was non-application of mind

by the Land Acquisition Officer to the objections filed by the various

claimants. In our view, that is not a situation where it can be said that

the Court struck down the entire section 6 declaration on a matter going to

the root of the land acquisition such where it is held that there is no

public purpose involved. According to the above Division Bench, the non-

application of mind by the Land Acquisition Officer is to the "objections'

in each case raising issues-personal to each objector. In fact, no argument

has been advanced before the Division Bench of the High Court or even

before us that the purpose is not a public purpose. In our view, it is not

possible for the applicants to contend that the Land Acquisition Officer

failed to apply his mind to objections which were indeed never filed before

him.

On fresh consideration of the matter, we are of the opinion that Abhey Ram

was decided correctly - if we may say so with great respect. - and that the

latter order of Division Bench in the writ petitions in the batch in Balak

Ram Gupta must be confined to the writ absolute orders dated 14.10,88 in

each of those 73 writ petitions and to the land covered thereby, because

the objections filed were personal to each case and there was no argument

before the Division Bench or even before us that there was no public

purpose or that there was colourable exercise.of power. We are of me view

shut the Division Bench of the High Court in its latter order dated

18.1l.88 containing reasons could nor in law have quashed the section 5A

inquiry and section 6 declaration covering :all other cases not before the

Division Bench when no question going to the Toot and covering all cases

arose, and contrary to the writ absolute issued in each case. The order

dated 14,10,88..in our view, would conlrol the order dated 18,11.88 and

would restrict the same.

Yet another argument for the applicants was that in Sudan Singh, this Court

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referred to another unreported judgment of the High Court in CWP 1373/89

etc. dated 15.5.89 where similar general directions to the DDA appli-cable

lo all cases were given - that possession be not taken if not already taken

or if possession was taken, it be restored if the compensation is paid back

with "12% interest. It was submitted by Sri Shanti Bhushan shat this

mandamus was based on an undertaking of counsel and could not have been

ignored in Abhey Kant. We are unable to agree. The above observations in

CWP. 1373/89, in our opinion, did not and could not have come in the way of

the learned Judges who disposed of Abhey Ram when they were dealing wish

ihe question as a matter of law. Abhey Ram decided the principle as lo

winch order in Balak Ram Gupta governs and as to what is the effect of the

two orders No such exercise was ever made in CWP.1373/89. if the 73 cases

or CWP.133789 or other cases were decided differently against the

Government and DDA. they would operate as res judicata only between those

parties.

It was argued for the applicants that the writ petitioner in Abhey Ram.

raised only a limited question in the High Court. namely, that their case

was governed by the decision of the Full Bench judgment dated 25.7.87 in

Balak Ram Gupta. Therefore, when Abhey Ram's case came so this Court by way

of appeal, this Court ought not have and need not have gone into the

correctness of the latter order of the Division Bench dated 18.11.88,

rendered long after the Full Bench decision on 25.7.87 and, therefore, the

said .decision in Abhey Ram was obiter. The quashing of the notifications

could not he confined 5o the 73 writ petitions. We are unable to agree with

the above contentions,

It will be noticed that when Abhey Ram was decided in the High Court, the

Full Bench decision alone was there and not the subsequent Division Bench

judgment in Ralak Ram Gupta 's case. But by the time Abhey Ram '.s case

came up before the three learned Judges in this Courl on 20.8.99, the

latter order of Division Bench dated 18.11.88 in Balak Ram Gupta was also

available and naturally the appellant raised a plea based on the latter

order of she Division Bench judgment dated 18.11.88 which said that entire

section 5A inquiry and the entire land acquisition proceedings stood

quashed. The appellant in Abhey Ram, in our view, was certainly entitled to

do so. His contention was, however, repelled in Abhey Ram holding that

notwithstanding the broad language used in the latter reasoned order dated

18.11.88, its area of operation was to be confined to what was stated by

the same Division Bench earlier on 14.10.88 when a brief operative order

was passed in the 73 cases allowing the writ petitions. We have already

held that the writ absolute dated 14.10.88 in each case was based on non-

consideration of objections and not on the basis of there being no public

purpose and that the decision m each case must, therefore, be confined to

the land covered therein. The three Judge Bench in Abhey Ram held that the

reasoned order dated 18.11,88 of the Division Bench could not travel beyond

the earlier operative order dated 14.10.88 and could not have covered land

other than the land involved in the said batch of writ petitions. In our

view, the question of the correctness or interpretation of the orders,

dated 14.10.88 and 18.11.88 in Balak Ram Gupta was put in issue directly in

Abhey Ram in this Court and the said decision in Abhey Ram can neither be

characterised as uncalled for nor as being obiter nor as a decision per

incuriam. Sudan Singh had not gone into this question at all and would not

help the applicant.

Yet another argument was raised that the Division Bench of the High Court

in its order dated 18.11.88 also held that the Lt. Governor had not applied

his mind. Even here, when no issue going to the root of the acquisition

such as lack of a public purpose was argued, the satisfaction of the Lt.

Governor must also obviously relate to the rejection of the personal

objections raised by each owner. This argument also cannot help the

applicants. (We shall revert back to this aspect under Points 4 and 5).

For the above reasons, we hold that Abhey Ram was correctly decided and it

was rightly followed in the present Civil appeals and no case is made out

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for referring the matter to a larger Bench. Points 2 and 3 decided against

the applicants,

Points 4 and 5 :

A contention was raised by Sri Shanti Bhushan that the Lt. Governor had not

applied his mind while issuing section 6 declaration. Counsel relied upon

certain observations made by the Division Bench in Balak Ram Gupta's case

on 18.11.88 (1989) 37 DLT 150 (DB). In that judgment, the High Court

extracted the declaration made under section 6 by the Lt, Governor. It

reads as follows : "I have carcfuliy gone through the Report of the Land

Acquisition Collector under section 5-A of the Land Acquisition Act in

respect of village Chattarpur. I have also considered the objections

received against the proposed acquisition.

2. The lands were notified under section 4 of the Land Acquisition Act for

a public purpose, namely 'Planned Development of Delhi',

3.I do not find substance in any of the objections. I, therefore, direct

that notification under section 6 of the Land Acquisition Act for a public

purpose, namely, 'Planned Development of Delhi' be issued in respect of

7142 bighas 18 biswas land of village Chattarpur as per draft furnished by

the Land Acquisition Collector.

The Division Bench of the Delhi High Court in its order dated 18.11.88

referred to the manner in which the Lt. Governor should have expressed his

satisfaction under section 6. The Bench observed :

"Similar orders are passed in relation to all the eleven villages as if

there was a prescribed pro forma. Section 6( 1) requires that the appro-

priate Government, in this case Adminislrator/Lt. Governor of Delhi should

consider the report under section 5-A. After consideration he has to

satisfy himself that particular land is needed for the public purpose. The

consideration of the report including the objections of the objectors must

be based on facts as disclosed in the order,"

The Division Bench went on to say :

"A mere statement, a.s is made in the present case, that the Lt. Governor

has carefully gone through the Report and also considered the objec-tions

is not sufficient compliance of Section 6 of the Act. His satisfac-tion

that particular land is required to be acquired is also to be arrived at on

congent and intelligent appreciation of the objections and the Section 5-A

report, Mere statement that he is satisfied about the acquisition of

particular land without stating any reasons will be mindless exercise of

the powers under section 6 of the Act. The order of the Lt. Governor must

disclose as to what were the objections and why he has rejected them."

In addition, learned senior counsel for the applicants argued that the use

of the word 'particular' in section 6 required that the Lt. Governor must,

in his satisfaction under section 6, have referred every piece of

particular land. In Our view, the above observations of the Division Bench

do not lay down the law correctly and in fact run counter to earlier

decisions of this Court. In Ganga Bishnui v. Cal Pinjrapole Society, [1968]

2 SCR 117 = AIR (1968) SC 615, the words used were that the "Governor is

satisfied that the land is needed for a public purpose". It was argued that

the said words did not ex facie show satisfaction of the Government which

was a condition precedent. It was argued that the Amendment by Act 38/1923

omitted the words appears' and used the words 'satisfied' instead. Even

so. this Court held that the law before the Amendment, and thereafter was

the same. It was held that section 6 specified the manner in which the

declaration should be made and if it was so made, it was conclusive. It was

held that it was not necessary that the notifi-cation should even refer to

the "satisfaction', If the satisfaction was challenged, it would be

sufficient if such satisfaction is proved by producing the record on the

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basis of which the section 6 declaration was issued. Therefore the argument

that section 6 declaration must contain reasons or refer to the objections

for every particular land, is not correct. Again in Ratilal Shakarabhai V,

Stale of Gujarat, [1970] 2 SCC 264, the plea that the Government had not

applied its mind was rejected by this Court in the following circumstances.

The Court observed :

"Before issuing that notification (i.e. section 6), there was an inquiry

under section 5A. The Government had issued that notification after

examining the report submitted by the concerned officer, there is no

material on record from which we can reasonably come to the conclu- sion

that the Government had acted biindly in issuing that notifica-tion,"

No reasons or other facts need be mentioned in the section 6 declaration on

its face. If the satisfaction is challenged in the Court, the Government

can show the record upon which the Government acted and justify the

satisfaction expressed in the Section 6 declaration.

It is true that section 6 uses the word 'particular land but in our view

while referring to its satisfaction in regard to the need to acquire the

entire land, the Government need not refer to every piece of particular

land. It is sufficient if the authority which conducts the section 5A

inquiry has considered the objections raised in relation to any particular

land. Even where the said author-ity accepts the objections, that is not

binding on the Government which can take a different view for good reasons.

Where the Government agrees with the report under section 5A, the

declaration under section 6 need not advert to the reasons or facts

concerning each piece of land. Hence, the wide observations made in Balak

Ram Gupta's case cannot be accepted.

In Abhey Ram as well as in the judgment in the Civil Appeals, it has been

clearly stated that those claimants who have not filed objections to the

section 4 notification cannot be permitted to contend before Court that the

section 5A inquiry is vitiated so far as they are concerned. Nor can they

be permitted to seek quashing of section 6 declaration on that ground. We

shall elaborate this aspect further.

Now abjections under section 5A, if filed, can relale to the contention

that :(i) the purpose for which land is being acquired is not a public

purpose (ii) that even if the purpose is a pubic purpose, the land of the

objector is not necessary, in the sense that the public purpose could be

served by other land already proposed or some other land to which the

objector may refer or (iii) that in any event, even if this land is

necessary for the public purpose, the special fact-situation in winch the

objector is placed, it is a fit case for omitting his land from the

acquisition. Objection (ii) is personal lo the land and objection (iii) is

personal lo the objector.

Now in the (ii) and (iii) type of objections, there is a personal element

which has to be pleaded in the section 5A inquiry and if objections have

not been filed, the notification must be conclusive proof that the said

person had "waived" all objections which were personal and which he could

have raised. However, so far as objection (i) is concerned, even in case

objections are not filed, the affected party can challenge in Cour that the

purpose was not a public purpose.

Learned Solicitor General Sri Salve rightly argued that in respect of each

land owner whose land is acquired, the section 4 notification if it-is

sought to be avoided on personal grounds as staled in (ii) and (iii) above,

it is necessary that objection be filed to avoid a voidable notification.

Otherwise, the notifi-calion which is not avoided on any personal grounds,

remains operative and personal objections are deemed lo be waived

In the extracts from the Division Bench judgment set out earlier. if will

be seen that two different concepts are unfortunately mixed up.

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Satisfaction regarding public purpose, it was said must be expressed in

respect of such 'particular land'. This view, as already stated, is not

correct, if the entire land is needed tor a public purpose, it is not

necessary for the Government (or here the Lt. Governor) to say in the

section 6 declaration that each piece of land is required for the purpose.

The Division Bench then mixed up this question with individual objections

in each writ petition. Obviously, these individual objections of the type

(ii) and (iii) mentioned above can only be personal to each writ petitioner

or peculiar in respect of each of the pieces of land owned. In that event,

the rejection of the objections by the Land Acqui-sition Officer and the

"satisfaction" of the Government/Lt, Governor can relate only to each of

these pieces of land and not the whole. Therefore, there is no question of

the Division Bench holding in its order dated 18.11,88 that the

satisfaction of the Lt. Governor in respect of the entire land is vitiated.

As already stated, the satisfaction regarding public purpose was never in

issue,

It was then argued that satisfaction under section 6 for the rest of the

land not covered by the 73 writ petitioner or even where no objections are

filed under section 5A, must be held vitiated because the objections filed

in certain other cases were not properly considered by the officer and

hence the section 6 satisfaction of the Lt. Governor for the rest of the

land is also vitiated.

We are unable to agree that in the cases not before the Division Bench and

in particular in cases where no objections are filed, the satisfaction

under section 6 is vitiated because in some other cases, the objections

which were filed were not properly disposed of. As to rejection of personal

ground of each writ petitioner - other than the 73 writ petitions - there

was no occasion for the Lt. Governor to apply his mind if objections were

not indeed filed. The only question then could have been about the public

purpose.

In the present cases there is no dispute that the purpose is a public

purpose. The applicant had not filed objections on grounds personally

appli-cable to him or to his land seeking exclusion from acquisition, and

the objec-tions in that behalf must be deemed to have been waived. Such a

person cannot be allowed to file a writ petition seeking the quashing of

section 5A inquiry and section 6 declaration on personal grounds if he had

not filed objections. Points 4 and 5 are decided accordingly against the

applicants.

Point 6:

This point would not have fallen for consideration because we have held

that the earlier judgment of this Court in civil appeals is correct and

does not warrant any review or recall, We are, however, considering this

point because of the fair concession made hy the learned Solicitor General

of India.

Learned Solicitor General of India, Sri Harish Salve, has placed before us

in written words, the scope and extent of the concession he is making on

behalf of the Government. It reads as follows :

"In a case where the Joint Director (New Lease) of the Delhi Devel-opment

Authority (DDA) has expressly represented that the proceed-ings stand

quashed, then the government would consider the question of de-notification

under section 48 provided

"(a) The applicant who has constructed upon the land is the original owner

and was the owner prior to the issuance of the notification under section

4. it is made expressly clear that even those transferees who have

acquired the land with permissions/NOCs under the Delhi Land (Restrictions

on Transfer) Act, 1972 are not covered by this.

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(b) The construction has been made after obtaining the approval of the MCD

tor she building plans.

(c) The construction as exists is in strict compliance with the sanc-tioned

plans and does not exceed the maximum built up area permis-sible in respect

of farm houses - which is (he applicable norm under the Building by-laws.

(d) The extent of deacquisition would be in she discretion of the Govt.

(e) If compensation has not been paid."

On the basis of the above concession. we have considered the case of Shri

Gurdip Singh Uban.

In the case of Sri Gurdip Singh Uban, the DDA had, during the pendency of

the proceedings, issued a letter, on 6.2.96 (F 9(2) 9()/CRC/South/S-7)

signed by the Joint Director representing as follows :

"Acquisition proceedings/Notification has been quashed by the Hon'bie High

Court in case of Shri B.R. Gupta and Ors.

You are, therefore, requested to kindly approach the MCD for approval of

the building plans and ADM(R) lor getting N.O.C. for construction on the

said land." Later, after "completing formalities, the applicant constructed

a house. In our view, there is a clear representation by the DDA to the

applicant and he has acted upon it. Having regard to the principles in

section 115 of the Evidence Act, a question of estoppel prima facie arises

in favour of the applicant. We are sure that the applicant's case for

release under section 48 will be sympa- thetically considered in the light

of the various factors mentioned in the con-cession of the learned

Solicitor General set out above. As to the extent of land that can be

released under Section 48 in addition to the building, it has to be left to

the reasonable discretion of the competent authority. We, therefore, direct

that the applicant's application, if made within 15 days from today, the

same be considered within 8 weeks after such filing, in light of the

observations made above and a reasoned order be communicated to Sri Gurdip

Singh Uban.

Status quo as to possession will be maintained as of today till disposal of

the representation and its receipt thereof by Sri Gurdip Singh Uban and for

a further period of two weeks after such receipt.

Point 6 is decided accordingly. Point 7 :

We now come to the writ petition filed under Article 32 of the Consti-

tution of India.

It appears that after the judgment in the present Civil Appeals, an order

was passed by the DDA on 7.12.99 as follows :

"1. DDA should go ahead with taking possession of Land Acqui-sition

Collector concerned and there is no Court order to the contrary and where

no objections have been filed by the land owners under section 5A of the

Land Acquisition Act, 1894 in pursuance of section 4 notification dated

5.11.1980 and 25.11.1980.

2. It is learnt that there are several cases where the compensation amount

paid to the petitioners has not been paid back to the Govern-ment either by

the party and in some cases due to lapse of six months time to deposit

cheque by the Land Acquisition Collector, thereby resulting in double

benefit to some petitioners for which detailed investigation called as for

large amount of money is involved.

3. The action in respect of lands for which the notification under

section 6 did not demise in terms of the Supreme Court's order dated

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20.8.99 but lor which the acquisition proceedings could not be con-cluded

by making of an Award should be gone into a careful manner and appropriate

action taken.

4, It has to be seen what contention discrimination between persons

situated summarily can be valid considering that it is only now that a

clear view/order of the Supreme Court has become available on 20,9,1999.

CLM may seek information from the SDM/Land Acquisition Collector concerned

regarding the availability of acquired land of which posses-sion can be

taken. which is from any litigation - details of khasra numbers, area and

village etc."

It" is this order that is challenged in this Writ petition. It is argued

that this order is unwarranted inasmuch as this Court while deciding the

Civil Appeal on 20.8.99 gave no directions to take action in this manner.

A counter has been filed justifying tins feller dated 7.12,99 and also

pointing out that the petitioner is not the original owner but a person who

claims purchaser under a power of attorney it is also pointed out that the

land of I bigha and 17 biswas could not have been sold and that NOC under

the Delhi Land Restriction and Transfer) Act. 1972 does.not have the effect

of releasing the land for acquisition. Sales are illegal. it is said,

because of sections 1 and 2 of Delhi Land Revenue Act, 1954 read wish

section 1(2) clause (c) of the Delhi Land Reforms Act, 1954 (Act 8/1954)

We do not propose to go into these questions. It will be for the petitioner

to move the High Court and raise the contentions in that Court, We dismiss

the writ petition with leave to move the High Court. We should not be

understood as having said anything on the merits. Point 7 is held

accordingly.

Point 8 :

This point concerns Mrs. Har Kiran Commar whose Review Petition 217 2000 is

pending and is yet to be circulated under O.XL.R.3. While the said

application is pending for review, the same applicant has filed this IA3

for the reliefs already set out at the beginning of this judgment. The

points raised in the IA3 are clearly in substance points which are raised

in the pending review application. By describing this application as one

for 'recall' of the order in the Civil Appeals, the applicant cannot be

allowed to circumvent the O.XL.R.3 and obtain personal hearing in open

Court of the issues which the Court has to consider in Chambers where no

oral hearing is permitted. We may also point out that in this court, it is

normally customary to file IAs for 'recall' when SLPs are dismissed for

default. But we are unable to understand how submissions in the nature of a

request for review can be made by describing the IA as one for 'recall'. To

permit this request which is a review in disguise would become bad

precedent in future cases. Otherwise, in every case parties will start

filing applications for 'recall' in addition to 'review' and raise the same

grounds and seek an oral hearing in the IA for 'recall'. In fact, learned

senior counsel Sri C.S. Viadyanathan proceeded to hand over certain fresh

documents in this IA to contend that the case of this applicant is also one

where section 48 could be favourably applied in her favour. The handing

over of these documents in this manner is seriously objected to by the

respondents. If the applicant is so advised, she may file these documents

in the pending review application. But we cannot pass orders in this IA

which virtually amounts to giving a disposal to her pending review petition

21/2000. We, therefore, reject this application however, permitting the

applicant to move the Registry to have the Review application listed in

Chambers. IA 3 is disposed of accordingly. Point 8 is decided accordingly.

In the result, the IAs, 3 to 5 are disposed of as stated above and the W.P.

155/2000 is rejected permitting petitioner to move the High Court. The

.direc-tions given under Point 6 shall be taken note of by the applicant

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Sri Gurdip Singh Uban and the respondents. The observations made under

Point 8 will be taken note of by Mrs. Har Kiran Commar and the respondent,

In the normal course, we should have imposed heavy costs on the applicant

Sri Gurdip Singh Uban for filing application for 'recall', 'modify' and

'recall' after dismissal of review petition. But. as some relief is

granted, on concession, we are not imposing costs.