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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1964 OF 2013

(@ SPECIAL LEAVE PETITION (CIVIL) NO.24916 OF 2008)

LAJJA RAM & ORS. APPELLANTS

VERSUS

UNION TERRITORY, CHANDIGARH & ORS. RESPONDENTS

O R D E R

1. Leave granted.

2. This appeal is directed against the judgment and order

passed by the High Court of Punjab and Haryana at Chandigarh in

Civil Writ Petition No. 14018 of 2008, dated 13.08.2008, whereby

and whereunder the High Court has dismissed the aforesaid Writ

Petition filed by the appellants.

3. The dispute relates to acquisition of lands situated

in village Lahora and Sarangpur, Chandigarh, by the respondent

No. 1 for the purpose of development of complex for important

projects and allied purposes, i.e., Chandigarh Science Park and

Institutional Area and also for regulated and planned

development under the Capital of Punjab (Development and

Regulation) Act, 1952.

4. The respondent No. 1 had issued a notification under

Section 4 of the Land Acquisition Act, 1894 (for short ‘the

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Act’), dated 25.07.2005, for acquisition of lands including

lands in Khasra Nos. 111, 112, 113, 114/1, 114/2 and 244 in the

village Lahora, whereat the residential houses of the appellants

are also situated for the aforesaid purpose. Pursuant to the

said notification, the Land Acquisition Officer (for short ‘the

LAO’) had issued a notice under Section 5-A of the Act, inter

alia, directing the appellants to file their objections, if any,

to the proposed acquisition of lands in question. The appellants

had filed their detailed objections, inter alia, bringing it to

the notice of the LAO that they have made 'A' class construction

over the lands in dispute. Having considered the objections so

filed and also keeping in view the stand of the appellants and

the respondent no. 1, a favorable report dated 17.02.2006 was

submitted by the LAO recommending, inter alia, exemption of the

appellant’s lands from acquisition to the competent authorities

who matters much. Later on, after conducting survey of the said

lands, the LAO has modified his earlier report made under

Section 5-A of the Act and accordingly has withdrawn his

recommendation in respect of grant of exemption to the

appellant’s lands, vide his letter dated 07.07.2006.

5. The notification under Section 6 of the Act dated

24.07.2006 was issued by the respondent-authorities. Upon

issuance of such notification, the appellants had approached

respondent-authorities for release of their lands from

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acquisition proceedings. On 26.03.2007, the matter was remitted

by respondent no. 2 to the LAO for re-consideration, whereafter

the LAO, after providing opportunity of hearing to the

appellants and inspection of the site, recommended release of

the said lands under Section 48 of the Act, by his report dated

16.05.2007. After a series of communications between the

respondent-authorities, the final decision was taken on

22.07.2008 releasing Khasra No. 113 in part and exempting Khasra

Nos. 114/1 and 114/2 while acquiring Khasra Nos. 111 and 112

completely and Khasra Nos. 113 and 244 in part. Immediately

thereafter, award came to be passed vide order dated 23.07.2008.

Aggrieved by the said award, the appellants had approached the

Writ Court in Civil Writ Petition No. 14018 of 2008, inter alia,

questioning the notifications issued under Sections 4 and 6 of

the Act.

6. By the impugned judgment and order, the High Court has

dismissed the Writ Petition on two grounds: firstly, that there

is delay of nearly three and two years respectively in

approaching the Writ Court from the date of Notifications issued

under Sections 4 and 6 of the Act, and therefore they are fatal

to the proceedings; and secondly that after the award passed by

the LAO, the appellants could not have approached the Writ

Court, inter alia, questioning the notifications issued by the

respondent no. 1 under Section 4 and 6 of the Act. Aggrieved by

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the aforesaid, the appellants are before us in this appeal by

special leave.

7. We have heard the learned counsel for the parties to

the lis and also perused the documents on record.

8. Shri V.K.Jhanji, learned senior counsel appearing for

the appellants would submit that the High Court has erred in

dismissing the petition on the ground of delay and laches. The

learned counsel would submit that the appellants could not

approach the Writ Court amidst the variable recommendations made

by the LAO in respect of their lands. He would further submit

that it is only after the final decision was taken by the

respondent-authorities rejecting the request of the appellants

to exempt their lands from acquisition on 22.07.2008, the

appellants have approached the Writ Court. He would further

submit that the LAO was not justified in modifying his report

dated 07.07.2006 under Section 5-A of the Act without duly

notifying and affording an opportunity of hearing to the

appellants. He would point out that the said action of the LAO

is not only in violation of the statutory provisions but also in

violation of the principles of natural justice and therefore,

the notification issued by the respondent-authorities under

Section 6 of the Act requires to be set aside.

9. Per contra, the learned counsel appearing for the

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State would support the impugned judgment and order of the High

Court and would contend that the LAO, after considering the

objections filed by the appellants, pursuant to the notice

issued under Section 5-A of the Act, had sent his report to the

respondent-authorities after complying with the mandatory

provisions of the Act and therefore, the notification issued

under Section 6 of the Act is justiciable.

10. We would first advert to the question of dismissal of

the Writ Petition by the High Court on the ground of delay and

laches and thereafter, delve into the merits of the submissions

made by the learned counsel for the parties. There is indeed

some delay on the part of the appellants in approaching the Writ

Court questioning the notifications issued by the respondent no.

1 under Sections 4 and 6 of the Act. It has come on record that

the LAO has taken variable stands in his reports dated

17.02.2006, 07.07.2006 and 16.05.2007 with regard to grant of

exemption from acquisition of the lands in dispute. It is only

when the appellants were informed that their lands cannot be

kept out of acquisitions, they have approached the Writ Court by

filing a petition under Article 226 of the Constitution of

India.

11. Although the underlying policy behind dismissal of

petitions on grounds of delay and latches is to discourage

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agitation of stale claims, still this Court has held that the

delay in approaching the Court must not always act in prejudice

to the aggrieved party and the Court must prudently exercise its

discretion in doing so. This Court in Tridip Kumar Dingal v.

State of W.B., (2009) 1 SCC 768, has held that this Court may

refuse to exercise its discretion where there is delays and

latches in invoking jurisdiction of the Writ Court. However, the

exercise of such discretion must be based on the facts and

circumstances of each case and the decision must rest upon

variety of factors including the nature of fundamental rights

breached, the remedy claimed and when and how the delay arose.

This Court, in Northern Indian Glass Industries v. Jaswant

Singh, (2003) 1 SCC 335 , has observed that the conduct of the

party challenging the notifications and pleading condonation of

delay also plays an important role in exercise of this

discretion.

12. Keeping in view the aforesaid observations of this

Court, in our considered opinion, the delay in approaching the

Court is satisfactorily explained by the appellants. The conduct

of the appellants is evidenced by the consistent stand adopted

by them in requesting the respondent-authorities throughout the

course of acquisition proceedings to exempt their lands from

acquisition proceedings. The appellants have assigned cogent

reasons for the delay in approaching the Writ Court amidst

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successive reports of the LAO making variable recommendations in

terms of grant of such exemption. The appellants have approached

the Writ Court soon after a final decision was made by the

respondent-authorities in this regard. Therefore, the High Court

was in error in dismissing the writ petition on the ground of

delay and latches on the part of the appellants in approaching

the High Court.

13. In view of the aforesaid discussion and in the present

set of facts and circumstances, considering the non-compliance

of mandatory provisions of the Act by the LAO during the

acquisition proceedings resulting in flagrant violation of the

principles of natural justice, as pointed out by Shri Jhanjhi,

we are of the considered view that the delay ipso facto should

not be put against the appellants and the case must be decided

on its merits.

1.The High Court has non-suited the appellants on yet another

ground viz. that the writ petition cannot be entertained after

the award is passed by the Land Acquisition Officer. In the

words of the Court:

“… the instant Writ Petition has been filed after

making of award by Land Acquisition Collector. On

making of award, the land vested in the State, free

from all encumbrances and, therefore, the acquisition

of the land cannot be challenged at this stage. In

this view, we are fortified by the ratio of law laid

down by the Hon’ble Apex Court in a recent judgment in

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Swaika Properties Pvt Ltd. v. State of Rajasthan, 2008

(2) RCR (Civil) 96. It has been categorically and

authoritatively laid down in this judgment by the

Hon’ble Apex Court that writ petition, after making of

award by the Land Acquisition Collector, cannot be

entertained.”

15. In our view, while dismissing the Writ Petition on the

aforesaid ground, the High Court has erred in two aspects,

firstly, the reasons recorded by the High Court do not reflect

the correct position of law in respect of challenge to

acquisition proceedings after passing of an award by the LAO and

secondly, the High Court has ignored that the possession of

acquired lands has not been taken over by the LAO from the

appellants after the passing of the award.

16. Section 16 of the Act bears utmost relevance to the

discussion and is extracted hereunder:

“16. Power to take possession- When the Collector has

made an award under section 11, he may take possession

of the land, which shall thereupon vest absolutely in

the Government, free from all encumbrances.”

17. It is settled law that after the award is passed by the

LAO/Collector, for the acquired lands to vest in the State

Government, free from all encumbrances, it must be succeeded by

his taking of possession of the lands under Section 16 of the

Act. It is only after taking possession that the acquired lands

would vest absolutely in the State Government. (See: Jethmull

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Bhojraj v. State of Bihar, (1972) 1 SCC 714; State of Rajasthan

v. D.R. Laxmi, (1996) 6 SCC 445 ; May George v. Special

Tahsildar, (2010) 13 SCC 98 and Raghbir Singh Sehrawat v. State

of Haryana, (2012) 1 SCC 792) . In the instant case, the Writ

Petition is filed by the appellants after the LAO has passed the

award, dated 23.07.2008. However, the High Court has failed to

notice that appellants continued to be in possession of the

lands and their residential premises constructed on the said

lands so acquired and therefore, the possession of the said

lands acquired under the notification has not been taken over by

the LAO so as to lead to vesting of land in the respondent No. 1

free from all encumbrances.

18. The High Court, in arriving at its conclusion, has

relied upon the decision of this Court in Swaika Properties (P)

Ltd. v. State of Rajasthan, (2008) 4 SCC 695, wherein this Court

has observed:

“19. In the present case also, the writ petition

having been filed after taking over the possession and

the award having become final, the same deserves to be

dismissed on the ground of delay and laches.

Accordingly, the orders of the learned Single Judge

and that of the Division Bench are affirmed to the

extent of dismissal of the writ petition and the

special appeal without going into the merits thereof.

This appeal also deserves to be dismissed without

going into the merits of the case and is dismissed as

such. No costs.”

(emphasis supplied)

19. In following the aforementioned decision of this

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Court, the High Court has erroneously omitted to consider the

requisite of taking over of possession by the LAO so as to lead

to vesting of the land in the State Government which was noticed

by this Court while dismissing the petition on ground of delay

and laches.

20. It is true that the lands vest in the State Government

after an award is passed and the possession of the lands is

taken; the aggrieved persons cannot challenge the validity of

notifications. This Court, in Market Committee v. Krishan

Murari, (1996) 1 SCC 311, has observed that after such vesting

of land in the State Government the High Court could not have

interfered with the acquisition proceedings so as to grant

relief addressing the stage contemplated under Section 5-A. In

our considered view, in this case the High Court while recording

its reasons has proceeded on incorrect assumptions in respect of

possession of acquired lands and erroneously concluded towards

the vesting of land in respondent No. 1. Therefore, the

aforesaid reasons recorded by the High Court for dismissal of

the Writ Petition filed by the appellants cannot be sustained by

us and the High Court ought not to have dismissed the Writ

Petition on this ground also.

21. The only issue that survives for our consideration and

decision is, whether the LAO, without affording an opportunity

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of hearing, could have passed the order rejecting their

objections and submitting his report adverse to the interest of

the land owners, to the respondent no. 1 recommending

acquisition of the lands in question, pursuant to which the

impugned notification under Section 6 of the Act is issued.

22. Before we advert to the aforesaid question, it is

appropriate that we briefly notice Section 5-A of the Act which

reads as under:

“5A. Hearing of objections.-

(1) Any person interested in any land which has been

notified under section 4, sub-section (1), as being

needed or likely to be needed for a public purpose or

for a Company may, within thirty days from the date of

the publication of the notification, object to the

acquisition of the land or of any land in the

locality, as the case may be.

(2) Every objection under sub- section (1) shall be

made to the Collector in writing, and the Collector

shall give the objector an opportunity of being heard

in person or by any person authorized 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 purpose 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.”

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23. The sub-section (2) of Section 5-A envisages the rule

of audi alteram partem and makes it sine qua non to the

acquisition proceedings under the Act. It mandates the LAO to

first provide an opportunity of hearing to the objector(s) in

respect of their objections to the acquisition of lands notified

under Section 4(1) of the Act. The LAO or the Collector may also

conduct a further enquiry in this regard, if he deems it

necessary, and thereafter decide upon the objections raised by

such objector(s) and submit his recommendations to the State

Government in the form of a report, on the basis of which the

State Government is to formulate its opinion in respect of

acquisition of lands notified under Section 4(1) of the Act and

issue appropriate notification under Section 6 of the Act. The

purpose is to afford an opportunity of making representation to

the aggrieved person before any order, which may adversely

affect his interest in any immovable property, may be passed by

the LAO and subsequent notification be issued by the State

Government.

24. The said purpose has been noticed by this Court in State

of Punjab v. Gurdial Singh, (1980) 2 SCC 471, wherein this Court

has observed as under:

“16. … it is fundamental that compulsory taking of a

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man’s property is a serious matter and the smaller the

man the more serious the matter. Hearing him before

depriving him is both reasonable and pre-emptive of

arbitrariness, and denial of this administrative

fairness is constitutional anathema except for good

reasons.”

25. Further, this Court in Raghbir Singh Sehrawat v. State

of Haryana, (2012) 1 SCC 792, has reflected upon the purpose of

inclusion of principles of natural justice in the mandatory

provisions of Section 5-A of the Act and their strict compliance

by the LAO in the following words:

“39. … it is necessary to remember that the rules of

natural justice have been ingrained in the scheme of

Section 5-A with a view to ensure that before any

person is deprived of his land by way of compulsory

acquisition, he must get an opportunity to oppose the

decision of the State Government and/or its

agencies/instrumentalities to acquire the particular

parcel of land. At the hearing, the objector can make

an effort to convince the Land Acquisition Collector

to make recommendation against the acquisition of his

land. He can also point out that the land proposed to

be acquired is not suitable for the purpose specified

in the notification issued under Section 4(1). Not

only this, he can produce evidence to show that

another piece of land is available and the same can be

utilised for execution of the particular project or

scheme.

40. Though it is neither possible nor desirable to

make a list of the grounds on which the landowner can

persuade the Collector to make recommendations against

the proposed acquisition of land, but what is

important is that the Collector should give a fair

opportunity of hearing to the objector and objectively

consider his plea against the acquisition of land.

Only thereafter, he should make recommendations

supported by brief reasons as to why the particular

piece of land should or should not be acquired and

whether or not the plea put forward by the objector

merits acceptance. In other words, the recommendations

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made by the Collector must reflect objective

application of mind to the objections filed by the

landowners and other interested persons.”

26. This Court in Munshi Singh v. Union of India, (1973) 2

SCC 337, has highlighted the importance of the rule of audi

alteram partem embodied in Section 5-A of the Act in the

following words:

“7. Section 5-A embodies a very just and wholesome

principle that a person whose property is being or is

intended to be acquired should have a proper and

reasonable opportunity of persuading the authorities

concerned that acquisition of the property belonging

to that person should not be made . We may refer to the

observation of this Court in Nandeshwar Prasad v.

State of U.P., AIR 1964 SC 1217 that the right to file

objections under Section 5-A is a substantial right

when a person’s property is being threatened with

acquisition and that right cannot be taken away as if

by a side wind. Sub-section (2) of Section 5-A makes

it obligatory on the Collector to give an objector an

opportunity of being heard. After hearing all

objections and making further inquiry he is to make a

report to the appropriate Government containing his

recommendation on the objections. The decision of the

appropriate Government on the objections is then

final. The declaration under Section 6 has to be made

after the appropriate Government is satisfied, on a

consideration of the report, if any, made by the

Collector under Section 5-A(2) . The legislature has,

therefore, made complete provisions for the persons

interested to file objections against the proposed

acquisition and for the disposal of their objections.”

(emphasis supplied)

27. This Court in Surinder Singh Brar v. Union of India,

(2013) 1 SCC 403 , while analyzing the legality of the

notification issued under Section 6 of the Act in the light of

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principles of natural justice as envisaged in the mandatory

provisions of the Act under Sections 5-A and 6, has observed

that the opportunity of hearing as envisaged under Section 5-

A(2) must not be denuded to mere formality and the LAO/Collector

must take into consideration the objections raised by the

objectors and record reasons in his report as to why or why not

the lands requires to be acquired for public purpose. This Court

has emphasized that it is the reasons recorded by the

LAO/Collector, after providing appropriate hearing to the

objectors that contribute to the decision reached by the State

authorities in issuing the notification under Section 6 of the

Act. The relevant paragraph is extracted hereunder:

“84. What needs to be emphasised is that hearing

required to be given under Section 5-A(2) to a person

who is sought to be deprived of his land and who has

filed objections under Section 5-A(1) must be

effective and not an empty formality. The Collector

who is enjoined with the task of hearing the objectors

has the freedom of making further enquiry as he may

think necessary. In either eventuality, he has to make

report in respect of the land notified under Section

4(1) or make different reports in respect of different

parcels of such land to the appropriate Government

containing his recommendations on the objections and

submit the same to the appropriate Government along

with the record of proceedings held by him for the

latter’s decision. The appropriate Government is

obliged to consider the report, if any, made under

Section 5-A(2) and then record its satisfaction that

the particular land is needed for a public purpose.

This exercise culminates into making a declaration

that the land is needed for a public purpose and the

declaration is to be signed by a Secretary to the

Government or some other officer duly authorized to

certify its orders. The formation of opinion on the

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issue of need of land for a public purpose and

suitability thereof is sine qua non for issue of a

declaration under Section 6(1). Any violation of the

substantive right of the landowners and/or other

interested persons to file objections or denial of

opportunity of personal hearing to the objector(s)

vitiates the recommendations made by the Collector and

the decision taken by the appropriate Government on

such recommendations. The recommendations made by the

Collector without duly considering the objections

filed under Section 5-A(1) and submissions made at the

hearing given under Section 5-A(2) or failure of the

appropriate Government to take objective decision on

such objections in the light of the recommendations

made by the Collector will denude the decision of the

appropriate Government of statutory finality. To put

it differently, the satisfaction recorded by the

appropriate Government that the particular land is

needed for a public purpose and the declaration made

under Section 6(1) will be devoid of legal sanctity if

statutorily engrafted procedural safeguards are not

adhered to by the authorities concerned or there is

violation of the principles of natural justice. The

cases before us are illustrative of flagrant violation

of the mandate of Sections 5-A(2) and 6(1)…”

(emphasis supplied)

28. It is not in dispute that at the initial stages and

after issuance of the notice under Section 5-A of the Act, the

LAO, after considering the objections had sent a report

favorable to the appellants inasmuch as recommending that the

lands in question need not be acquired by the respondent-

authorities for the purpose intended in the acquisition

notification. Thereafter, upon the survey of lands, the LAO has

changed his stance and has suggested that the said lands should

not be exempted from acquisition and thus, must be acquired by

the respondent-authorities. The order so passed by the LAO was

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adverse to the interests of the appellants and they were

entitled to be provided with a reasonable opportunity of hearing

to represent their stand before the LAO in the altered

circumstances of the case. This non-adherence to the principles

envisaged under the Act at the stage of making recommendations,

not only defeats the purpose and object of the provisions of

Section 5-A(2) but also introduces illegality into the opinion

formulated by the State Government after considering the report

so submitted by the LAO and therefore, by necessary implication,

permeates the notification issued under Section 6 of the Act

with such illegality.

29. In our considered opinion, before passing the said

order, opportunity of hearing ought to have been granted to the

land owners who have immovable property rights in the lands

acquired. Since that has not been done, the action of the

respondent-authorities is contrary to the statutory provisions

and also in violation of the principles of natural justice.

30. In view of the above, we set aside the notification

issued under Section 6 of the Act by the State Government qua

the petitioners only. However, we permit the State Government

and its authorities, if they so desire, to proceed from the

stage from which we have pointed out the mistake/defect in the

course of acquisition proceedings in so far as the lands of the

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appellants.

31. We clarify that the award in respect of other lands

shall stand as it is and is not disturbed.

32. The appeal is disposed of accordingly. Parties to

bear their own costs.

Ordered accordingly.

....................J.

(H.L. DATTU)

....................J.

(DIPAK MISRA)

NEW DELHI;

FEBRUARY 27, 2013.