W.P. (C) No. 829/2007 Page 1 of 42 Unreportable * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) No. 829 of 2007 % Reserved on : November 28, 2008 Pronounced on :February 20,2009. NARENDER KUMAR . . . Petitioner through : Mr. P.N. Lekhi, Sr. Advocate. Mr. Sameer Bansal, Advocate. VERSUS UNION OF INDIA & ORS. . . . Respondents through : Mr. Sanjay Poddar, Advocate. Mr. Gaurav Sareen, Advocate. CORAM :- THE HON’BLE MR. JUSTICE A.K. SIKRI THE HON’BLE MR. JUSTICE MANMOHAN SINGH 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. Land of the petitioner which falls in revenue estate of village Satbari was sought to be acquired along with large chunk of land, not only of that village but various other villages as well. W.P. (C) No. 829/2007 Page 2 of 42 For such large acquisition of land, notification under Section 4 was issued on 25.11.1980 and objections were invited under Section 5A of the Act. Thereafter, declaration under Section 6 was issued on 37.05.1985 covering the land of the petitioner. The petitioner had challenged the said acquisition by filing a writ petition in the year 1986. Somehow, may be his ill luck, he failed in his attempt as his writ petition was dismissed on 25.11.2004. Since the petitioner was not represented in the Court when this writ petition was dismissed, he sought review by filing the petition in April, 2005. To his dismay even this was dismissed on 13th January, 2006. He challenged those orders by filing special leave petition in the Supreme Court, which met the same fate as that was also dismissed on 12th May, 2006. He made one last attempt in those proceedings by seeking review of the dismissal orders passed in the SLP. This also could not turn the luck in his favour as the same was dismissed on 27the June, 2006. Normally, with all these unsuccessful attempts challenging the acquisition of his land right upto the Apex Court, the matter needed quietus. However, it has not deterred the spirits of the petitioner. 2. The present writ petition is filed challenging the same notifications issued under Sections 4 & 6 of the Act including the Award which has been rendered in the interregnum. Certain subsequent events and judgments of this Court have emboldened the petitioner to take this step. Before we come to these events, it W.P. (C) No. 829/2007 Page 3 of 42 would be necessary to give some more details about the previous proceedings challenging these notifications in the Writ Petition No. 1228 of 1986. Culminating into dismissal of review petition by the Supreme Court vide order dated 27th June, 2006, notification under Section 4 of the L.A. Act was issued on 25.11.1980 for large scale acquisition of land in many Revenue Estates including Revenue estate of Village Satbari. Land of petitioner was included in this notification. On 24.12.1980, the petitioner filed objections under Section 5A of the L.A. Act in writing before the Collector within the prescribed period. However, the Government did not accede to any objection and proceeded to issue declaration under Section 6 of the L.A. Act on 27.05.1985. Aggrieved by the compulsory acquisition of his land, petitioner filed CWP No. 1228/1986 titled Narender Kumar Vs. Union of India before this Court impugning the notifications on various grounds. Interim order for status quo was granted and matter admitted for final hearing. Many other writ petitions were filed challenging same notification. 72 number of writ petitions were heard by a Division Bench of this Court with leading case known as Balak Ram Gupta Vs. Union of India 59 (1989) DLT 150. These writ petitions were allowed and compulsory acquisition arising out of the same notifications in respect of 72 land owners quashed on ground of non-compliance with W.P. (C) No. 829/2007 Page 4 of 42 mandate of Section 5A. Balak Ram Gupta‟s decision was upheld in Supreme Court in DDA Vs. Sudan Singh (1997) 5 SCC 430. 3. However, thereafter the Supreme Court had occasion to reconsider these decisions once again in Abhey Ram Vs. Union of India (1997) 5 SCC 421, and thereafter Delhi Administration Vs. Gurdip Singh Uban (1999) 7 SCC 44. In these cases, the Supreme Court took the view that the benefit of the judgment of Balak Ram Gupta would be available only to the 72 petitioners whose cases were decided by that judgment. The Court laid down the principle that ratio of the said judgment can be availed of only by those who had filed objections under Section 5A of the Land Acquisition Act. Those who failed to file such objections were not competent to challenge the notification. 4. Many cases were thereafter decided by this Court. In those cases where objections under Section 5A were not filed, writ petitions were dismissed. In some writ petitions, the amendments in the writ petitions were sought raising the plea that objections under Section 5A were preferred, though this fact was not mentioned in the writ petition originally filed. 5. In few cases, amendment was allowed, allowing those petitioners to incorporate the plea in the writ petitions. A large batch of such writ petitions were taken up for hearing from time to time. The petition filed by the petitioners, i.e., Civil Writ Petition No. 1228 of 1986 was listed for final disposal on 25.11.2004 along with W.P. (C) No. 829/2007 Page 5 of 42 certain other writ petitions. Nobody appeared on behalf of the petitioner. All these writ petitions were dismissed on the ground those petitioners had not taken any plea in respect of filing objections under Section 5A of the Act. A short order was passed to this effect reads as under: “Admittedly, in the present case, no objections have been filed by the petitioner under Section 5- A of the Act. Consequently, the writ petition and application for interim relief are dismissed and interim order dated 28.05.1986 stands vacated.” 6. After the petitioner come to know about the dismissal of his writ petition, he filed a review petition inter alia on the ground that the order in the writ petition was passed on an incorrect factual premise and that the petitioner had in fact filed objections under Section 5A of the Act. His prayer was that he should be meted out the same treatment as was given to the petitioners in Balak Ram Gupta‟s case. This review petition was dismissed on merits vide speaking order dated 13th January, 2006. The Court noted the contention of the petitioner that though objections under Section 5A of the Land Acquisition Act were taken, this fact was not mentioned by sheer inadvertence. However, rejecting this contention and dismissing the review petition, the Division Bench observed as under: “5. We have considered the submissions made during the course of hearing and also averments contained in the writ petition. The facts here are that the petitioner‟s land was notified under W.P. (C) No. 829/2007 Page 6 of 42 Section 4 on 25.11.1985. The petitioner urged ten grounds in support of his challenge to the acquisition; they all pertain to the acquisition being illegal on account of delay. It was alleged that the declaration was made beyond the period contemplated under Section 6(1) of the Act. The petitioner had never urged that he had preferred objections under Section 5-A of the Act. 6. The submission made at this stage that the petitioner had in fact preferred objection and its omission was on account of inadvertence and that this is a sufficient ground to review the order dismissing the petition is, in our opinion, not well founded. The writ proceedings were pending before this Court for well over 18 years. The petitioner neither alleged nor even placed the documents on record to suggest that his objections under Section 5-A were filed. The Court, therefore, proceeded on the basis of averments, in the absence of appearance on behalf of the petitioner when the matter was heard finally.” 7. The petitioner assailed the aforesaid orders passed in writ petition as well as in review petition before the Supreme Court. This writ petition was filed along with application for condonation of delay and both Special Leave Petition as well as condonation of delay applications were dismissed in the following manner: “We see no reasons to interference, on account of delay as also on merit.” 8. The review of the aforesaid order was also sought by the petitioner which met with no success as vide order dated 27.07.2006 review petition was dismissed observing as under: “We have carefully gone through the review petition and the annexures thereto. We find no merit therein. Hence, the review petition is dismissed.” W.P. (C) No. 829/2007 Page 7 of 42 9. As mentioned above, the petitioner has filed instant petition again challenging the same notifications as well as the award which has been rendered by the LAC in the meantime. The petitioner contends that first round of litigation and failed attempt of the petitioner cannot be construed as res judicata. His submission is that there is no bar to filing the present petition. Before we state these submissions in detail, the legal developments which have occurred in similar cases in the meantime, and of which the petitioner heavily relies upon will have to be stated. 10. We have already mentioned that various writ petitioners were dismissed wherein plea regarding filing of objections under Section 5A of the Act was not taken and/or the objections were not preferred which included the case of the petitioner. However, the petitioner contends that several other similar cases came before this Court wherein amendment/addition of facts regarding filing of Section 5A objections was either allowed at the stage of final arguments or after reserving order or even at the stage of review after the writ petition was similarly dismissed on wrong factual grounds. Some such illustrative cases in respect of revenue estate of village Satbari itself are mentioned by the petitioner, details of which are as under: “(a) Bhupinder Kaur Kler Vs. Union of India, W.P. (C) No. 1055/1986: Original writ dismissed vide order dated 14.12.2004 on ground of non- filing of Section 5A objections, but review petition seeking incorporation of fact of filing Section 5A objection allowed vide order dated 12.05.2006. W.P. (C) No. 829/2007 Page 8 of 42 The case was made subject to decision in Chatro Devi’s case. (b) R.D. Bhanot Vs. Union of India, W.P. (C) No. 1151/1986: Original writ dismissed vide order 19.05.2005 on ground of non-filing of Section 5A objections, but application for recall/review allowed vide order dated 14.03.2008 thereby permitting petitioner to urge facts related to filing of Section 5A objections, and contend that he is covered by Chatro Devi’s case. Copy of order is annexed to this note. (c) Geeta Devi Vs. Union of India, W.P. (C) No. 1115/1987: Application for amendment of the Writ petition to include the ground of filing of Section 5A objections was moved in 2004 after case was reserved for judgment. The application was allowed vide a detailed order dated 27.04.2005 by the same Bench that subsequently dismissed the petitioner‟s identical review petition. This writ petition has now been finally allowed and acquisition quashed vide order dated 11.05.2007. Copy of Order dated 11.05.2007 is annexed to this note. (d) Sarita Sarna Vs. Union of India, W.P. (C) No. 1152/1986: After case was reserved for final orders, an application for amendment to incorporate fact of filing of Section 5A objections was taken up on 06.04.2005, and matter thereafter made subject to final decision in Chatro Devi’s case vide order dated 18.05.2005. The writ has now been allowed and acquisition quashed vide order dated 11.05.2007. Copy of order dated 11.05.2007 is annexed to this note.” 11. It is also pointed out by the petitioner that the issue of filing of Section 5A objections arising out of the same notifications came up before another Division Bench comprising of Mr. Swatantra Kumar, J. and Mr. Madan B. Lokur, J. The two Judges held contrary view and, therefore, the matter was referred to the third Judge Mr. T.S. Thakur, J. (as he then was). The third Judge W.P. (C) No. 829/2007 Page 9 of 42 rendered his decision dated 20th December, 2006, agreeing with Mr. Madan B. Lokur, J. and quashing the notification. This judgment is reported Chatro Devi Vs. Union of India (137) 2007 DLT 14. It was also held that Balak Ram Gupta had never been overruled by the Supreme Court in any subsequent judgment and therefore, its finding that acquisition is to be quashed on the ground on invalid procedure followed in considering the objections Section 5A would ensue to the benefit of all land owners who had filed such objections under Section 5A of the Act. In Para 38 of the judgment given by Mr. T.S. Thakur, J., reliance is placed by the petitioner and therefore, we reproduce the same: “38. There was some debate before me as it was before the Division Bench whether the decision in Balak Ram Gupta‟s case (supra) has been overruled by the Supreme Court in the subsequent decisions rendered by Their Lordships. I have carefully gone through the decisions to which reference was made by Mr. Poddar in an attempt to show that ht decision in Balak Ram Gupta‟s case no longer holds good but am unable to find any observation in anyone of those decisions, finding fault with or overruling the view taken by this Court that a personal hearing under Section 5A of the Act must be done by the very same officer who makes the report. There is in any case nothing to suggest in anyone of the subsequent decisions rendered by the Apex Court in which Balak Ram Gupta‟s-III case has been discussed to show that the observations made by this Court in the paragraph extracted above were found to be legally unsustainable. Reference may, at this stage, be made to another decision rendered by a Division Bench of this Court in Hari Ram Kakkar V. Union of India & Ors. (supra). This court had, in that case noted W.P. (C) No. 829/2007 Page 10 of 42 the decisions rendered in Munnilal‟s case, Balak Ram Gupta‟s I case, Balak Ram Gupta‟s II case and Balak Ram Gupta‟s III case in the light of subsequent pronouncements of Their Lordships of the Supreme Court in Delhi Administration Vs. Gurdip Singh Uban (supra), and Abhey Ram Vs. Union of India (supra), and held, on the basis of the record produced before it that there was a complete negation of the right conferred on the land owners under Section 5A of the Act. In relation to village Satbari the Court found that the Collector who had heard the land owners was not the one, who had eventually made the report to the Government. Since the successor in office of the outgoing Collector had not himself heard the objections, the requirement of Section 5A was, observed the Court, violated. What is significant is that the decisions in Hari Ram Kakkar‟s case was rendered after taking note of the decision referred by the Supreme Court in Gurdip Singh Uban‟s case and in the case of Abhey Ram (supra). None of those decisions were taken as having overruled Balak Ram Gupta‟s case insofar as the said decision recognized that the Collector who hears the land owners alone can submit the report under Section 5A of the Act. The Court had, at any rate, taken an independent view on the same lines and quashed the proceedings on account t of non-compliance with the provisions of Section 5A. A Bench of co-ordinate jurisdiction would have had no option but to fall in line with that reasoning unless it found something erroneous in the same in which event a reference to a Full Bench alone would provide a solution [See State of Tripura Vs. Tripura Bar Association and Ors., 1998 (5) SCC 637; Govt. of A.P. and Anr. Vs. B. Satyanarayana Rao (Dead) by LRs., IV (2000) SLT 228= (4) SCC 262; Govt. of Andhra Pradesh and Ors. Vs. A.P. Jaiswal and Ors., VIII 2000 SLT 707=2001 (1) SCC 748; State of Maharashtra & Ors. Vs. Abdul Javed Abdul Majid & Ors., 2002 (Suppl. – I) JT 151].” 12. The petitioner, therefore, contends that all those who had filed objections under Section 5A of the Act are to be given benefit of W.P. (C) No. 829/2007 Page 11 of 42 Balak Ram Gupta case, which remains a good law covering the field even today. On this, following submissions are predicated: A) Since there was factual error in the orders dated 25.11.2004 passed in the Writ Petition No. 1228 of 1986 stating that objections under Section 5A were not taken by the petitioner, the said order is illegal and per incurium. Therefore, the dismissal of the earlier writ petition and subsequent orders passed in those proceedings in review or appeal to the Supreme Court will have no adverse impact in the case of petitioner. B) For this purpose, it is the submissions of the petitioner that principle of res judicata do not apply to the facts of this case. C) According to the petitioner, if his case is examined on its merits, he is identically situated as Balak Ram Gupta, Chatro Devi and several other cases. Therefore, he is entitled to the same treatment on the principles of Judicial comity & discipline. 13. Detailed submissions were made on the aforesaid aspects by Mr. P.N. Lekhi learned senior counsel appearing for the petitioner. During the course of argument, the learned counsel conceded that the central issue in the present case was that res judicata and outcome thereof would determine the result of this petition. He paraphrased this issue as follows: “Is the rule of res judicata an absolute bar to reopening even an illegal decision, or are there judicially recognized exceptions to this rule which would enable a constitutional Court to do complete justice when faced with an unsustainable previous decision.” W.P. (C) No. 829/2007 Page 12 of 42 Therefore, the entire focus of his submission was that res judicata would not apply in this case inasmuch as previous order was rendered in ignorance of binding law and was, therefore, per incurium; the Court was under a duty to correct its record and to do complete justice guided by the principle “Actus Curiae Neminem Gravabit”, i.e. “An act of the Court shall prejudice no man”. He also submitted that if the Court is misled into making a factually and legally incorrect order due to withholding of important facts going to the root of the lis, then also the resultant judgment is vitiated by fraud and will be treated by subsequent Courts as a nullity, thereby negating any arguments based on res judicata. In support of the aforesaid submissions, Mr. Lekhi referred to plethora of case law which can be noted at this stage: “Reference was made to the following observation of Mathura Prasad Sarjoo Jaiswal Vs. Dossibhai B.B. Jeejeebhoy AIR 1971 SC 2355 (at 2359): “It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier, proceeding between the same parties. But, where the decision is on a question of law, i.e., the interpretation of a statute, it will be res judicata in a subsequent W.P. (C) No. 829/2007 Page 13 of 42 proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in S. 11, Code of Civil Procedure, means the right litigated between the parties, i.e., the facts on which the right is claimed or denied and the law applicable t the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata, for a rule of procedure cannot supersede the law of the land.” The learned counsel argued that the principle that a decision of a Court cannot sanction an illegality which extinguishes the rights of a private citizen on account of application of principle of „Actus Curiae Neminem Gravabit’, was firmly established by a 7 Judge Bench decision of the Hon‟ble Supreme Court in A.R. Antulay Vs. R.S. Nayak (1988) 2 SCC 602. As the judgment is the locus classicus on the point in issue in the present case, the relevant portions have been extracted in extensor to bring out their full meaning and effect: Per Mukharji, Oza & Natarajan, JJ.: “41………….. Judged by that view the singling out of the appellant in this case for a speedier trial by the High Court for an offence of which the High Court had no jurisdiction to try under the Act of 1952 was, in our opinion, unwarranted, unprecedented and the directions given by this Court for the said purpose, were not warranted. If that is the position, when that fact is brought to our notice we must remedy the situation. In rectifying the error, no procedural inhabitations should debar this Court because no person should suffer by reason of any mistake of the Court. The Court, as is manifest, gave its directions on February 16, 1984. Here no rule of res judicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions. In this connection, reference may be mad eto the decision of the Gujrat High Court in Soni Vrajlal Jethalal Vs. Soni Jadavji Govindji, AIR 1972 Guj. 148 where Mr. D.A. Desai, J., speaking for the Gujrat High Court observed that no act of the Court or irregularity can come in the W.P. (C) No. 829/2007 Page 14 of 42 way of justice being done and one of the highest and the first duty of all Courts is to take care that the act of the Court does no injury to the suitors. 42. It appears that when this Court gave the aforesaid directions on February 16, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions or law and the decision in Anwar Ali Sarkar case. See Halsburys Laws of England, 4th Edn., Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn, pages 128 and 130; Young Vs. Bristol Aeroplane Co. Ltd., (1944) 2 AII ER 293, 300. Also see the observations of Lord Goddard in Moore Vs. Hewitt, (1947) 2 AII ER 270 and Penny Vs. Nicholas, (1950) 2 AII ER 89, 92-A. Per incurium are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is bases, is found, on that account to be demonstrably wrong. See Morelle Vs. Wakeling, (1955) 1 AII ER 708, 718-F. Also see State of Orissa Vs. Titaghur Paper Mills Co. Ltd., 1985 Supp SCC 280. We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong. 47. In our opinion, we are not debarred from re- opening this question and giving proper directions and correcting the error in the present appeal, when