UNION OF INDIA & ORS. versus GOPALDAS BHAGWAN DAS & ORS.
[2020] 3 S.C.R. 765, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Facts
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UNION OF INDIA & ORS.
v.
GOPALDAS BHAGWAN DAS & ORS.
(Civil Appeal No. 3636 of 2016)
FEBRUARY 04, 2020
[R. F. NARIMAN, S. RAVINDRA BHAT AND
V. RAMASUBRAMANIAN, JJ.]
Land Acquisition Act, 1894 – ss.4(1), 6 – In 1943, Govt. of
India requisitioned 4 acres and 34 gunthas of land bearing Survey
No. 120/2 (Part) of Village Malad, Mumbai – In 1949, 2.68 acres
land out of the aforesaid land was de-requisitioned – In 1975,
notification was issued u/s.4(1) acquiring the said extent of 8623
sq.m. – Declaration u/s.6 issued in 1978 – Draft Award passed in
1986 – Challenge made in the present case in the year 2002 – In a
proceeding concerning other lands covered by the same s. 4
notification, Supreme Court in Kulsum R. Nadiadwala v. State of
Maharashtra and Ors., allowed appeal by land owner – In view
thereof, present case referred to larger Bench that delay and laches
have to be ignored – Held: On facts, question of delay and laches
need not be answered as s.4 notification that was struck down in
Kulsum R. Nadiadwala’s case is the very notification in the facts of
this case wherein the entire acquisition proceedings were quashed
– Unable to agree with appellant’s contention that the s.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 Supreme Court’s 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. Nadiadwala’s case was land that was adjacent to the
present land, the very s.4 notification was struck down and declared
null and void – This being the case, it would not be in the interest of
justice to allow the present appeal in favour of appellant, as this
would amount to a discrimination between two persons who are
otherwise similarly placed – Further, Kulsum R. Nadiadwala’s case
did not deal with newspaper publication at all – It only dealt with
the requirement of publication in the Official Gazette and public
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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 s.4 – 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.
Nadiadwala’s case in which relief was granted – Therefore, present
case cannot lead to a different conclusion on similar facts – Defence
of India Rules, 1939 – r. 75A – Constitution of India – Arts. 141
and 142.
Dismissing the appeal, the Court
HELD: 1.1 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. Nadiadwala’s case that delay and laches
have to be ignored, the Court is of the view that on the facts of
this case, the Court need not answer this question. This is for
the reason that the Section 4 notification that was struck down in
Kulsum R. Nadiadwala’s case is the very notification in the facts
of this case. In Kulsum R. Nadiadwala’s case, this Court quashed
the entire acquisition proceedings stating that they be declared
as null and void. Unable to agree with the 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 Court’s 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. Nadiadwala’s 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. [Para 8][772 G-H; 773 A-D]
1.2 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. Nadiadwala’s case did not deal with
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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. In Indore Development
Authority’s case, 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. Thus, it
is wholly unnecessary to adjourn this case in order to await the
judgment of the Constitution Bench in this case. 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. Nadiadwala’s case in which relief has been granted to Kulsum
R. Nadiadwala. This case, therefore, cannot lead to a different
conclusion on similar facts. 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.
In Kulsum R. Nadiadwala, though the appellant’s 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 Nadiadwala’s
heirs were prosecuting the appeal, this direction appears to have
been made. [Paras 10-15][774 B-H; 775 A-B]
Kulsum R. Nadiadwala v. State of Maharashtra and Ors.
(2012) 6 SCC 348 : 2012 (7) SCALE 212 – relied on.
Indore Development Authority v. Manohar Lal and
Others Etc. [2019] 14 SCALE 470 – referred to.
Case Law Reference
2012 (7) SCALE 212
relied on
Para 3
[2019] 14 SCALE 470
referred to
Para 6
UNION OF INDIA & ORS. v. GOPALDAS
BHAGWAN DAS & ORS.
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3636
of 2016.
From the Judgment and Order dated 31.07.2015 corrected on
11.09.2015 of the High Court of Judicature at Bombay in Writ Petition
No.1667 of 2002.
Ms. Rekha Pandey and Arvind Kumar Sharma, Advs. for the
Appellants.
Shyam Diwan, Sr. Adv., Y. Raja Gopala Rao, Ms. Y. Vismai Rao
and Bhav Ratan, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. F. NARIMAN J.
1. This matter has a somewhat chequered history.
2. In 1943, Government of India requisitioned 4 acres and 34
gunthas of the land owned by one Rajabahadur Bhagwandas Haridas,
bearing Survey No. 120/2 (Part) of Village Malad, Mumbai, in exercise
of powers conferred under Rule 75A of the Defence of India Rules,
1939. On 27.07.1949, the Collector, Thane, de-requisitioned 2.68 acres
in the Survey No. 120 Part 2 out of the aforesaid 4 acres 34 gunthas.
Ultimately, despite the land having first being requisitioned, a notification
under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred
to as ‘Act’), was issued on 24.10.1975 acquiring the aforesaid extent of
8623 square meters. A declaration under Section 6 of the Act was issued
on 30.11.1978. According to the respondents herein, a Draft Award was
passed under Section 11 of the Act on 23.09.1986, against which
references were made, both under Section 18 and 30, of the Act. The
respondents confirmed that after symbolic
possession was taken on
06.01.1987 by the State, such possession has remained with the State till
date.
3. In a proceeding that was filed, insofar as other lands  in Village
Malad were concerned, covered by the same section 4 notification, this
Court in Kulsum R. Nadiadwala v. State of Maharashtra and Ors.
(2012) 6 SCC 348, allowed an appeal by the land owner. After stating in
paragraph 2 that the very same section 4 notification was issued in order
that a Central Ordinance Depot for the Union of India be made for
defence purposes, the judgment records that the beneficiary of these
lands, being the Central Government, was served, but did not appear at
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the time of hearing of the appeal. The appellant in Kulsum R.
Nadiadwala’s case (supra) argued several points before this Court,
which were resisted by the learned counsel appearing for the State of
Maharashtra, basically on the ground that the writ petition should have
been dismissed on the ground of delay and laches as was done by the
impugned High Court judgment. After setting out Section 4 of the Act,
this Court observed that the requirement that the notification under Section
4 be published in the Official Gazettee and the requirement that the
Acquiring Authority should publish public notices of the substances of
such notification in a convenient place or places in the locality in which
the land proposed to be acquired is situate, are cumulative conditions,
both being mandatory.  The Court then held: -
“13. In the instant case, the respondents before the High Court
had filed their reply affidavit. They did not dispute the contentions
of the appellants that they had not issued any public notices as
required under Section 4 of the Act. They only reiterated that
such notification was published in the Official Gazette. Since the
mandatory requirement as required under Section 4(1) of the Act
is not complied with by the respondents, while acquiring the lands
in question, in our opinion, the entire acquisition proceedings
requires to be declared as null and void.
14. This Court in J&K Housing Board v. Kunwar Sanjay Krishan
Kaul has observed that all the
formalities of serving notice to the
interested person, stipulated under Section 4 of the Act, has to be
mandatorily complied with in the manner provided therein, even
though the interested persons have knowledge of the acquisition
proceedings. This Court further observed thus:
“32. It is settled law that when any statutory provision provides
a particular manner for doing a particular act, the said thing or
act must be done in accordance with the manner prescribed
therefor in the Act. Merely because the parties concerned were
aware of the acquisition proceedings or served with individual
notices does not make the position alter when the statute makes
it very clear that all the procedures/modes have to be strictly
complied with in the manner provided therein. Merely because
the landowners failed to submit their objections within 15 days
after the publication of notification under Section 4(1) of the
State Act, the authorities cannot be permitted to claim that it
need not be strictly resorted to.”
UNION OF INDIA & ORS. v. GOPALDAS
BHAGWAN DAS & ORS. [R. F. NARIMAN J.]
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15. In view of the conclusion that we have reached on the first
issue canvassed by the learned counsel for the appellants, we do
not think that other issues that the learned counsel for the appellants
has raised and canvassed before us need to be answered.”
4. It may only be mentioned that in Kulsum R. Nadiadwala’s
case (supra), the challenge was made by way of a writ petition filed in
1987, as opposed to the present challenge, which was made only in the
year 2002.
5. Ms. Rekha Pandey, learned counsel appearing on behalf of the
appellant, has raised several points in support of this appeal.  First and
foremost, she adverted to an order of this Court dated 27.03.2018 by
which a Division Bench of this Court has referred this matter to a larger
Bench of three Judges.  This order reads as follows:
“1. The land of the respondents was acquired vide notification
dated 24.10.1975 under Section 4 of the Land Acquisition Act,
1894 (the Act). The said land was earlier requisitioned in the years
1942 to 1945 for defence purpose. Award was made in the year
1986 and symbolic possession of the land was taken on 06.01.1987.
Objections of the award were filed by the respondents against
the award. A reference under Section 18 of the Act was made
which was disposed of. Thereafter, the writ petition was filed by
the respondents mainly on the ground that there was no due
publication of the notification under Section 4 of the Act which
was
a mandatory requirement.
2. The High Court upheld the plea of the respondents relying upon
judgment of this Court in “Kulsum R. Nadiadwala Vs. State of
Maharashtra” (2012) 6 SCC 348.
3. Learned counsel for the appellants submitted that having regard
to the fact that the land was already being used for defence purpose
since the year 1942 to 1945 and the notification under Section 4
issued on 24.10.1975 was challenged for the first time by the writ
petition filed on 24.06.2002, the High Court should have dismissed
the writ petition on the ground of delay and laches as entertaining
such petition will seriously affect public interest. It was submitted
that view taken in the relied upon judgment ignores the concept of
laches.
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4. Learned counsel for the respondents submits that in spite of
delay and laches, this Court in the aforesaid judgment quashed
the acquisition.
5. We are of the view that delay and laches may be a bar to
challenge to the acquisition after 27 years. In Tamil Nadu Housing
Board, Chennaiversus M. Meiyappan and ors (2010) 14 SCC 309
this Court held that inland acquisition proceedings the Court should
not encourage stale litigation as it may hinder projects of public
importance. The contra view in three-Judge Bench decision in
Dayal Singh versus Union of India (2003) 2 SCC 593 was held to
be in conflict with the Constitution Bench judgment in Rabindranath
Bose versus Union of India (1970) 1 SCC 84 and three-Judge
Bench judgment in Printers (Mysore) Ltd. versus M.A.
Rasheed(2004) 4 SCC 460. The said judgment was cited with
approval in recent judgment of three-Judge Bench in Indore
Development authority versus Shailendra (Dead) through Lrs. &
Ors. (Civil Appeal No.20982 of 2017 –pronounced on 8th February,
2018).
6. In view of above, the view taken by two-Judge Bench in Kulsum
R. Nadiadwala versus State of Maharashtra (2012) 6 SCC 348 to
the effect that delay and laches have to be ignored is not free
from doubt.
7. Thus, we are of the view that the matter needs to be placed
before a Bench of three Judges.
8. Accordingly, let the papers be placed before Hon’ble the Chief
Justice of India for appropriate directions.”
6. Ms. Pandey, learned counsel, has argued
before us that as a
matter of law, such a huge delay in filing a writ petition against Section 4
notification cannot possibly be countenanced.  She has also argued that
in Kulsum R. Nadiadwala’s case (supra), really speaking, the delay is
only of one year, as the Award in this case was issued only in the year
1986, and the writ petition filed in that case was of 1987. In the present
case, the writ petition, as has been stated earlier, was filed only in 2002.
Another important point of difference, according to the learned counsel
is that notice was personally served on the respondents in this case,
which is not the case in Kulsum R. Nadiadwala’s case (supra). She
also raised the point that was raised in the special leave petition filed by
UNION OF INDIA & ORS. v. GOPALDAS
BHAGWAN DAS & ORS. [R. F. NARIMAN J.]
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the Union of India which is that Kulsum R. Nadiadwala’s case (supra)
is “per incuriam” inasmuch as it decided a point which arose out of the
Amendment Act of 1984, when the Section 4 notification was only of
1975, the 1984 Amendment Act not being retrospective.  She further
went on to state that, in any case, the Constitution Bench is taking up, as
one of the pleas before it in Indore Development Authority v. Manohar
Lal and Others Etc. (SLP (C) Nos. 9036-9038 of 2016) whether delay
would apply as a good ground for dismissing a writ petition on the ground
of laches insofar as challenges to land acquisition proceedings are
concerned, and that we should await the judgment of the Constitution
Bench before proceeding with the judgment in this case.  She kept harping
upon the fact that the acquisition in this case is for  important defence
purposes and possession of this land has been with the Union Government
since 1942.  She also stated that Kulsum R. Nadiadwala’s judgment, if
properly read, did not amount to quashing of the entire section 4
notification, particularly in view of the last paragraph of the judgment,
where the claim of the appellant was restricted only to 50 per cent of the
land in question, the direction being that the respondents shall hand over
50 per cent of the vacant possession of the said land to the appellant
forthwith.
7. As against these submissions, Shri Shyam Divan, learned senior
counsel
appearing on behalf of the respondents, argued that that the
section 4 notification in both these cases being the same, and Kulsum R.
Nadiadwala’s case being a final judgment of this Court in which a review
petition and a curative petition have been dismissed, the said judgment
would apply on all fours to the facts of this case. He pointed out that the
question of delay, though raised by the learned counsel who appeared on
behalf of the State, was not directly answered in Kulsum R.
Nadiadwala’s case inasmuch as, according to the Division Bench of
this Court in Kulsum R. Nadiadwala’s 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.
Nadiadwala’s casethat 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
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down in Kulsum R. Nadiadwala’s case is the very notification in the
facts of this case. We may also note that in paragraph 13 of the Kulsum
R. Nadiadwala’s 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.Pandey’s 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 Court’s 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.
Nadiadwala’s  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. Nadiadwala’s 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. Nadiadwala’scase, 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 Sub-section (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
UNION OF INDIA & ORS. v. GOPALDAS
BHAGWAN DAS & ORS. [R. F. NARIMAN J.]
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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. Nadiadwala’s 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 Authority’s 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. Nadiadwala’s 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. Nadiadwala’s 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. Nadiadwala’s
judgment, it is important to note that though the appellant’s claim was
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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 Nadiadwala’s heirs were prosecuting the appeal, this direction
appears to have been made.
16. This being the case, we dismiss the appeal of the Union.
Divya Pandey
Appeal dismissed.
UNION OF INDIA & ORS. v. GOPALDAS
BHAGWAN DAS & ORS. [R. F. NARIMAN J.]