Case: UNION OF INDIA &amp; ORS Vs. GOPALDAS BHAGWAN DAS &amp; ORS

who appeared on behalf of the State, was not directly answered in Kulsum R. Nadiadwalas case inasmuch as, according to the Division Bench of this Court in Kulsum R. Nadiadwalas case, a mandatory condition of a section 4 notification not being adhered to, would amount to there being no acquisition at all in the eye of law. On this ground, he defended the impugned judgment passed by the Bombay High Court. 8. Though this Court has, by its order dated 27.03.2018, referred this case to a larger Bench in view of the decision in Kulsum R. Nadiadwalas case that delay and laches have to be ignored, we are of the view that on the facts of this case, we need not answer this question. This is for the reason that the section 4 notification that was struck down in Kulsum R. Nadiadwalas case is the very notification in the facts of this case. We may also note that in paragraph 13 of the Kulsum R. Nadiadwalas case set out hereinabove, this Court quashed the entire acquisition proceedings stating that they be declared as null and void. We are unable to agree with Ms.Pandeys contention that the Section 4 notification not only deals with various other lands in Village Malad but also deals with a land in a different village altogether viz., Village Wadhawan, and that this Courts judgment did not go to the extent of declaring the acquisition bad so far as village Wadhawan is concerned. So far as village Malad is concerned, where the land in Kulsum R. Nadiadwalas case was land that was adjacent to the present land, the very section 4 notification has been struck down and declared null and void, and this being the case, it would not be in the interest of justice to allow the present appeal in favour of the Union of India, as this would amount to a discrimination between two persons who are otherwise similarly placed. 9. Adverting to some of the other submissions made by Ms.Pandey, first and foremost, in Kulsum R. Nadiadwalas case, the High Court dismissed the writ petition filed therein on the ground of there being a 12 years delay in filing the writ petition, and not on the ground that there was a one year delay as the Award in this case was passed only in 1986. Secondly, the factum of notices actually being served in this case, as opposed to notices not being individually served in Kulsum R. Nadiadwalas case, apart from making no difference to mandatory conditions that have to be followed, as held in Kulsum R. Nadiadwala, has been repelled by the judgment under appeal as follows: 11. Nevertheless, we are dealing with the contentions raised by the First Respondent. Perusal of the Writ Petition and in particular Clause (h) of Paragraph 4 thereof shows that a specific contention has been raised by the Petitioners that neither the Petitioners nor their predecessors were served with any notice and were not offered any opportunity of raising objections to the Notification under Subsection (1) of Section 4 of the said Act. …………………………………………………………………………………………………………………….. ………………………………………………………………………………………………………………………. Affidavit of Shri Manoj Shankarrao Gohad, the Special Land Acquisition Officer (4) is completely silent as far as this factual and legal challenge in this Petition is concerned. …………………………………………………………………………………………………………………………. …………………………………………………………………………………………………………………………. 10. Insofar as the per incuriam point is concerned, this can be disposed of by stating that even though newspaper publication of the section 4 notification came in by amendment for the first time in 1984, the requirement of public notice where the land is situate in addition to publication in the Official Gazette, was always there from the inception. Kulsum R. Nadiadwalas case did not deal with newspaper publication at all. It only dealt with the requirement of publication in the Official Gazette and public notices of the substance of the notification being given in the locality in which the lands are acquired, both of which were held to be cumulative and mandatory requirements of section 4. 11. So far as the Indore Development Authoritys case (supra) is concerned, the Constitution Bench is seized of several questions, all of which pertain to the construction of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 12. This being the case, and regard being had to what we have stated hereinabove, it is wholly unnecessary for us to adjourn this case in order to await the judgment of the Constitution Bench in this case. 13. Given the fact that this is a Defence project in which possession has been with the Union since 1942, the same facts would obtain as in Kulsum R. Nadiadwalas case in which relief has been granted to Kulsum R. Nadiadwala. This case, therefore, cannot lead to a different conclusion on similar facts. 14. As to the argument that no declaration that the entire section 4 notification is quashed inasmuch as the claim of the appellants in Kulsum R. Nadiadwalas case was restricted only to 50 per cent of the lands in question, it is important to make a distinction between a declaration of law which would bind other future cases under Article 141 of the Constitution of India and an order made in the facts of the case which may equally be made to do substantial justice on the facts of a given case, sometimes under Article 142. 15. On a reading of paragraph 16 of Kulsum R. Nadiadwalas judgment, it is important to note that though the appellants claim was restricted to only 50 per cent of the land in question, so far as the other 50 per cent is concerned, the judgment itself makes a reference to the fact that the appellants are legal heirs of one deceased Ismail Nadiadwala and that there was another claimant whose name was Ibrahim Nadiadwala to whom, presumably, 50 per cent of the property went. Since only Ismail Nadiadwalas heirs were prosecuting the appeal, this direction appears to have been made.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]8. Though this Court has, by its order dated 27.03.2018, referred this case to a larger Bench in view of the decision in Kulsum R. Nadiadwalas case that delay and laches have to be ignored, we are of the view that on the facts of this case, we need not answer this question. This is for the reason that the section 4 notification that was struck down in Kulsum R. Nadiadwalas case is the very notification in the facts of this case. We may also note that in paragraph 13 of the Kulsum R. Nadiadwalas case set out hereinabove, this Court quashed the entire acquisition proceedings stating that they be declared as null and void. We are unable to agree with Ms.Pandeys contention that the Section 4 notification not only deals with various other lands in Village Malad but also deals with a land in a different village altogether viz., Village Wadhawan, and that this Courts judgment did not go to the extent of declaring the acquisition bad so far as village Wadhawan is concerned. So far as village Malad is concerned, where the land in Kulsum R. Nadiadwalas case was land that was adjacent to the present land, the very section 4 notification has been struck down and declared null and void, and this being the case, it would not be in the interest of justice to allow the present appeal in favour of the Union of India, as this would amount to a discrimination between two persons who are otherwise similarly placed9. Adverting to some of the other submissions made by Ms.Pandey, first and foremost, in Kulsum R. Nadiadwalas case, the High Court dismissed the writ petition filed therein on the ground of there being a 12 years delay in filing the writ petition, and not on the ground that there was a one year delay as the Award in this case was passed only in 1986. Secondly, the factum of notices actually being served in this case, as opposed to notices not being individually served in Kulsum R. Nadiadwalas case, apart from making no difference to mandatory conditions that have to be followed, as held in Kulsum R. Nadiadwala, has been repelled by the judgment under appeal as follows:10. Insofar as the per incuriam point is concerned, this can be disposed of by stating that even though newspaper publication of the section 4 notification came in by amendment for the first time in 1984, the requirement of public notice where the land is situate in addition to publication in the Official Gazette, was always there from the inception. Kulsum R. Nadiadwalas case did not deal with newspaper publication at all. It only dealt with the requirement of publication in the Official Gazette and public notices of the substance of the notification being given in the locality in which the lands are acquired, both of which were held to be cumulative and mandatory requirements of section 411. So far as the Indore Development Authoritys case (supra) is concerned, the Constitution Bench is seized of several questions, all of which pertain to the construction of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 201312. This being the case, and regard being had to what we have stated hereinabove, it is wholly unnecessary for us to adjourn this case in order to await the judgment of the Constitution Bench in this case13. Given the fact that this is a Defence project in which possession has been with the Union since 1942, the same facts would obtain as in Kulsum R. Nadiadwalas case in which relief has been granted to Kulsum R. Nadiadwala. This case, therefore, cannot lead to a different conclusion on similar facts15. On a reading of paragraph 16 of Kulsum R. Nadiadwalas judgment, it is important to note that though the appellants claim was restricted to only 50 per cent of the land in question, so far as the other 50 per cent is concerned, the judgment itself makes a reference to the fact that the appellants are legal heirs of one deceased Ismail Nadiadwala and that there was another claimant whose name was Ibrahim Nadiadwala to whom, presumably, 50 per cent of the property went. Since only Ismail Nadiadwalas heirs were prosecuting the appeal, this direction appears to have been made.