LAW FOR ALL

Friday, May 26, 2017

Whether the subsequent purchasers/assignees/power of attorney holders, etc., have locus standi to file a petition for a declaration of lapse of acquisition proceedings under Section 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as “the 2013 Act”), is the only issue arising for consideration in these cases.=Thus, the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are all persons who are interested in compensation/land owners/affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondents/writ petitioners do not have any locus standi.- In the peculiar facts and circumstances of these cases, the appellants are given a period of six months to exercise its liberty granted under Section 24(2) of the 2013 Act for initiation of the acquisition proceedings afresh.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6112 OF 2017
(Arising out of S.L.P.(C) No. 13551 of 2015)

GOVT. OF NCT OF DELHI ... APPELLANT (S)

VERSUS

MANAV DHARAM TRUST AND ANOTHER ... RESPONDENT (S)

WITH

CIVIL APPEAL NO. 6113 OF 2017
(Arising out of S.L.P.(C) No.14802 of 2015),

CIVIL APPEAL NO. 6115 OF 2017
(Arising out of S.L.P.(C) No.15451 of 2015),

CIVIL APPEAL NO. 6118 OF 2017
(Arising out of S.L.P.(C) No.15454 of 2015),

CIVIL APPEAL NO. 6120 OF 2017
(Arising out of S.L.P.(C) No.16995 of 2015),

CIVIL APPEAL NO. 6123 OF 2017
(Arising out of S.L.P.(C) No.17006 of 2015),

CIVIL APPEAL NO. 6128 OF 2017
(Arising out of S.L.P.(C) No.17248 of 2015),

CIVIL APPEAL NO. 6131 OF 2017
(Arising out of S.L.P.(C) No.17740 of 2015),

CIVIL APPEAL NO. 6134 OF 2017
(Arising out of S.L.P.(C) No.18480 of 2015),

CIVIL APPEAL NO. 6136 OF 2017
(Arising out of S.L.P.(C) No.18485 of 2015),

CIVIL APPEAL NO. 6138 OF 2017
(Arising out of S.L.P.(C) No.19204 of 2015),

CIVIL APPEAL NO. 6140 OF 2017
(Arising out of S.L.P.(C) No.19452 of 2015),

CIVIL APPEAL NO. 6142 OF 2017
(Arising out of S.L.P.(C) No.19555 of 2015),

CIVIL APPEAL NO. 6146 OF 2017
(Arising out of S.L.P.(C) No.22067 of 2015),

CIVIL APPEAL NO. 6149 OF 2017
(Arising out of S.L.P.(C) No.22069 of 2015),

CIVIL APPEAL NO. 6152 OF 2017
(Arising out of S.L.P.(C) No.22994 of 2015),

CIVIL APPEAL NO. 6156 OF 2017
(Arising out of S.L.P.(C) No.22995 of 2015),

CIVIL APPEAL NO. 6160 OF 2017
(Arising out of S.L.P.(C) No.23742 of 2015),

CIVIL APPEAL NO. 6163 OF 2017
(Arising out of S.L.P.(C) No.24957 of 2015),

CIVIL APPEAL NO. 6164 OF 2017
(Arising out of S.L.P.(C) No.24963 of 2015),

CIVIL APPEAL NO. 6166 OF 2017
(Arising out of S.L.P.(C) No.25524 of 2015),

CIVIL APPEAL NO. 6170 OF 2017
(Arising out of S.L.P.(C) No.26493 of 2015),

CIVIL APPEAL NO. 6173 OF 2017
(Arising out of S.L.P.(C) No.26606 of 2015),

CIVIL APPEAL NO. 6186 OF 2017
(Arising out of S.L.P.(C) No.26724 of 2015),

CIVIL APPEAL NO. 6190 OF 2017
(Arising out of S.L.P.(C) No.27318 of 2015),

CIVIL APPEAL NO. 6194 OF 2017
(Arising out of S.L.P.(C) No.27485 of 2015),

CIVIL APPEAL NO. 6197 OF 2017
(Arising out of S.L.P.(C) No.27729 of 2015),

CIVIL APPEAL NO. 6203 OF 2017
(Arising out of S.L.P.(C) No.28002 of 2015),

CIVIL APPEAL NO. 6206 OF 2017
(Arising out of S.L.P.(C) No.28579 of 2015),

CIVIL APPEAL NO. 6209 OF 2017
(Arising out of S.L.P.(C) No.28745 of 2015),

CIVIL APPEAL NO. 6213 OF 2017
(Arising out of S.L.P.(C) No.28768 of 2015),

CIVIL APPEAL NO. 6216 OF 2017
(Arising out of S.L.P.(C) No.28922 of 2015),

CIVIL APPEAL NO. 6219 OF 2017
(Arising out of S.L.P.(C) No. 28927 of 2015),

CIVIL APPEAL NO. 6224 OF 2017
(Arising out of S.L.P.(C) No. 28929 of 2015),

CIVIL APPEAL NO. 6228 OF 2017
(Arising out of S.L.P.(C) No.29537 of 2015),

CIVIL APPEAL NO. 6233 OF 2017
(Arising out of S.L.P.(C) No. 30148 of 2015),

CIVIL APPEAL NO. 6237 OF 2017
(Arising out of S.L.P.(C) No. 30211 of 2015),

CIVIL APPEAL NO. 6240 OF 2017
(Arising out of S.L.P.(C) No. 30224 of 2015),

CIVIL APPEAL NO. 6242 OF 2017
(Arising out of S.L.P.(C) No.30228 of 2015),

CIVIL APPEAL NO. 6246 OF 2017
(Arising out of S.L.P.(C) No.30234 of 2015),

CIVIL APPEAL NO. 6249 OF 2017
(Arising out of S.L.P.(C) No.30238 of 2015),

CIVIL APPEAL NO. 6260 OF 2017
(Arising out of S.L.P.(C) No.30243 of 2015),

CIVIL APPEAL NO. 6264 OF 2017
(Arising out of S.L.P.(C) No.30244 of 2015),

CIVIL APPEAL NO. 6267 OF 2017
(Arising out of S.L.P.(C) No.30275 of 2015),

CIVIL APPEAL NO. 6270 OF 2017
(Arising out of S.L.P.(C) No.30733 of 2015),

CIVIL APPEAL NO. 6272 OF 2017
(Arising out of S.L.P.(C) No.30734 of 2015),

CIVIL APPEAL NO. 6274 OF 2017
(Arising out of S.L.P.(C) No.30735 of 2015),

CIVIL APPEAL NO. 6276 OF 2017
(Arising out of S.L.P.(C) No.31250 of 2015),

CIVIL APPEAL NO. 6279 OF 2017
(Arising out of S.L.P.(C) No.31366/2015),

CIVIL APPEAL NO. 6281 OF 2017
(Arising out of S.L.P.(C) No.31673 of 2015),

CIVIL APPEAL NO. 6283 OF 2017
(Arising out of S.L.P.(C) No.32614 of 2015),

CIVIL APPEAL NO. 6285 OF 2017
(Arising out of S.L.P.(C) No.32617 of 2015),

CIVIL APPEAL NO. 6287 OF 2017
(Arising out of S.L.P.(C) No.32640 of 2015),

CIVIL APPEAL NO. 6289 OF 2017
(Arising out of S.L.P.(C) No. 32642 of 2015),

CIVIL APPEAL NO. 6291 OF 2017
(Arising out of S.L.P.(C) No.32643 of 2015),

CIVIL APPEAL NO. 6292 OF 2017
(Arising out of S.L.P.(C) No.32645 of 2015),

CIVIL APPEAL NO. 6294 OF 2017
(Arising out of S.L.P.(C) No.32647 of 2015),

CIVIL APPEAL NO. 6296 OF 2017
(Arising out of S.L.P.(C) No.33344 of 2015),

CIVIL APPEAL NO. 6298 OF 2017
(Arising out of S.L.P.(C) No.34619 of 2015),

CIVIL APPEAL NO. 6300 OF 2017
(Arising out of S.L.P.(C) No.35231 of 2015),

CIVIL APPEAL NO. 6302 OF 2017
(Arising out of S.L.P.(C) No.35243 of 2015),

CIVIL APPEAL NO. 6125 OF 2017
(Arising out of S.L.P.(C) No.545 of 2016),

CIVIL APPEAL NO. 6127 OF 2017
(Arising out of S.L.P.(C) No.848 of 2016),

CIVIL APPEAL NO. 6129 OF 2017
(Arising out of S.L.P.(C) No.1686 of 2016),

CIVIL APPEAL NO. 6130 OF 2017
(Arising out of S.L.P.(C) No.1698 of 2016),

CIVIL APPEAL NO. 6132 OF 2017
(Arising out of S.L.P.(C) No.1700 of 2016),

CIVIL APPEAL NO. 6133 OF 2017
(Arising out of S.L.P.(C) No.2070 of 2016),

CIVIL APPEAL NO. 6135 OF 2017
(Arising out of S.L.P.(C) No.2839 of 2016),

CIVIL APPEAL NO. 6137 OF 2017
(Arising out of S.L.P.(C) No.4221 of 2016),

CIVIL APPEAL NO. 6141 OF 2017
(Arising out of S.L.P.(C) No.7016 of 2016),

CIVIL APPEAL NO. 6143 OF 2017
(Arising out of S.L.P.(C) No. 7564 of 2016),

CIVIL APPEAL NO. 6145 OF 2017
(Arising out of S.L.P.(C) No.7568 of 2016),

CIVIL APPEAL NO. 6147 OF 2017
(Arising out of S.L.P.(C) No.7609 of 2016),

CIVIL APPEAL NO. 6150 OF 2017
(Arising out of S.L.P.(C) No.7735 of 2016),

CIVIL APPEAL NO. 6153 OF 2017
(Arising out of S.L.P.(C) No.7761 of 2016),

CIVIL APPEAL NO. 6155 OF 2017
(Arising out of S.L.P.(C) No.8770 of 2016),

CIVIL APPEAL NO. 6157 OF 2017
(Arising out of S.L.P.(C) No.8793 of 2016),

CIVIL APPEAL NO. 6159 OF 2017
(Arising out of S.L.P.(C) No.8798 of 2016),

CIVIL APPEAL NO. 6161 OF 2017
(Arising out of S.L.P.(C) No.8808 of 2016),

CIVIL APPEAL NO. 6167 OF 2017
(Arising out of S.L.P.(C) No.8811 of 2016),

CIVIL APPEAL NO. 6169 OF 2017
(Arising out of S.L.P.(C) No.8812 of 2016),

CIVIL APPEAL NO. 6172 OF 2017
(Arising out of S.L.P.(C) No.8813 of 2016),

CIVIL APPEAL NO. 6175 OF 2017
(Arising out of S.L.P.(C) No.8817 of 2016),

CIVIL APPEAL NO. 6176 OF 2017
(Arising out of S.L.P.(C) No. 8818 of 2016),

CIVIL APPEAL NO. 6178 OF 2017
(Arising out of S.L.P.(C) No.8819 of 2016),

CIVIL APPEAL NO. 6180 OF 2017
(Arising out of S.L.P.(C) No.8820 of 2016),

CIVIL APPEAL NO. 6181 OF 2017
(Arising out of S.L.P.(C) No.8829 of 2016),

CIVIL APPEAL NO. 6182 OF 2017
(Arising out of S.L.P.(C) No.8836 of 2016),

CIVIL APPEAL NO. 6184 OF 2017
(Arising out of S.L.P.(C) No.9061 of 2016),

CIVIL APPEAL NO. 6185 OF 2017
(Arising out of S.L.P.(C) No.9184 of 2016),

CIVIL APPEAL NO. 6187 OF 2017
(Arising out of S.L.P.(C) No.10009 of 2016),

CIVIL APPEAL NO. 6189 OF 2017
(Arising out of S.L.P.(C) No.10495 of 2016),

CIVIL APPEAL NO. 6191 OF 2017
(Arising out of S.L.P.(C) No.11339 of 2016),

CIVIL APPEAL NO. 6193 OF 2017
(Arising out of S.L.P.(C) No.11349 of 2016),

CIVIL APPEAL NO. 6195 OF 2017
(Arising out of S.L.P.(C) No.11356 of 2016),

CIVIL APPEAL NO. 6198 OF 2017
(Arising out of S.L.P.(C) No.11372 of 2016),

CIVIL APPEAL NO. 6200 OF 2017
(Arising out of S.L.P.(C) No.11380/2016),

CIVIL APPEAL NO. 6202 OF 2017
(Arising out of S.L.P.(C) No.11383 of 2016),

CIVIL APPEAL NO. 6205 OF 2017
(Arising out of S.L.P.(C) No.11448 of 2016),

CIVIL APPEAL NO. 6207 OF 2017
(Arising out of S.L.P.(C) No.11458/2016),

CIVIL APPEAL NO. 6210 OF 2017
(Arising out of S.L.P.(C) No.17354 of 2016),

CIVIL APPEAL NO. 6212 OF 2017
(Arising out of S.L.P.(C) No.19966 of 2016),

CIVIL APPEAL NO. 6214 OF 2017
(Arising out of S.L.P.(C) No.19972 of 2016),

CIVIL APPEAL NO. 6217 OF 2017
(Arising out of S.L.P.(C) No.19976 of 2016),

CIVIL APPEAL NO. 6218 OF 2017
(Arising out of S.L.P.(C) No.23083/2016),

CIVIL APPEAL NO. 6221 OF 2017
(Arising out of S.L.P.(C) No.23085/2016),

CIVIL APPEAL NO. 6222 OF 2017
(Arising out of S.L.P.(C) No.23095/2016),

CIVIL APPEAL NO. 6225 OF 2017
(Arising out of S.L.P.(C) No.23642/2016),

CIVIL APPEAL NO. 6227 OF 2017
(Arising out of S.L.P.(C) No.23646/2016),

CIVIL APPEAL NO. 6230 OF 2017
(Arising out of S.L.P.(C) No.23659 of 2016),

CIVIL APPEAL NO. 6231 OF 2017
(Arising out of S.L.P.(C) No.24307 of 2016),

CIVIL APPEAL NO. 6234 OF 2017
(Arising out of S.L.P.(C) No.24313 of 2016),

CIVIL APPEAL NO. 6236 OF 2017
(Arising out of S.L.P.(C) No.24321 of 2016),

CIVIL APPEAL NO. 6239 OF 2017
(Arising out of S.L.P.(C) No.25136 of 2016),

CIVIL APPEAL NO. 6241 OF 2017
(Arising out of S.L.P.(C) No.28183 of 2016),

CIVIL APPEAL NO. 6243 OF 2017
(Arising out of S.L.P.(C) No.28270 of 2016),

CIVIL APPEAL NO. 6245 OF 2017
(Arising out of S.L.P.(C) No.28272 of 2016),

CIVIL APPEAL NO. 6248 OF 2017
(Arising out of S.L.P.(C) No. 28274/2016),

CIVIL APPEAL NO. 6250 OF 2017
(Arising out of S.L.P.(C) No.28279 of 2016),

CIVIL APPEAL NO. 6252 OF 2017
(Arising out of S.L.P.(C) No.28281 of 2016),

CIVIL APPEAL NO. 6253 OF 2017
(Arising out of S.L.P.(C) No.28661 of 2016),

CIVIL APPEAL NO. 6255 OF 2017
(Arising out of S.L.P.(C) No.28668 of 2016),

CIVIL APPEAL NO. 6256 OF 2017
(Arising out of S.L.P.(C) No.30426 of 2016),

CIVIL APPEAL NO. 6259 OF 2017
(Arising out of S.L.P.(C) No.31440 of 2016),

CIVIL APPEAL NO. 6262 OF 2017
(Arising out of S.L.P.(C) No.31442/2016),

CIVIL APPEAL NO. 6263 OF 2017
(Arising out of S.L.P.(C) No.31444 of 2016),

CIVIL APPEAL NO. 6265 OF 2017
(Arising out of S.L.P.(C) No.31480/2016),

CIVIL APPEAL NO. 6266 OF 2017
(Arising out of S.L.P.(C) No.32231 of 2016),

CIVIL APPEAL NO. 6269 OF 2017
(Arising out of S.L.P.(C) No.32996 of 2016),

CIVIL APPEAL NO. 6119 OF 2017
(Arising out of S.L.P.(C) No.35159 of 2016),

CIVIL APPEAL NO. 6121 OF 2017
(Arising out of S.L.P.(C) No.35160 of 2016),

CIVIL APPEAL NO. 6122 OF 2017
(Arising out of S.L.P.(C) No.35163 of 2016),

CIVIL APPEAL NO. 6139 OF 2017
(Arising out of S.L.P.(C) No.36421 of 2016),

CIVIL APPEAL NO. 6144 OF 2017
(Arising out of S.L.P.(C) No.36792 of 2016),

CIVIL APPEAL NO. 6148 OF 2017
(Arising out of S.L.P.(C) No.37159 of 2016),

CIVIL APPEAL NO. 6151 OF 2017
(Arising out of S.L.P.(C) No.37657 of 2016),

CIVIL APPEAL NO. 6154 OF 2017
(Arising out of S.L.P.(C) No.38279 of 2016),

CIVIL APPEAL NO. 6158 OF 2017
(Arising out of S.L.P.(C) No.38283 of 2016),

CIVIL APPEAL NO. 6162 OF 2017
(Arising out of S.L.P.(C) No.38284 of 2016),

CIVIL APPEAL NO. 6168 OF 2017
(Arising out of S.L.P.(C) No.38286 of 2016),

CIVIL APPEAL NO. 6171 OF 2017
(Arising out of S.L.P.(C) No.38292 of 2016),

CIVIL APPEAL NO. 6174 OF 2017
(Arising out of S.L.P.(C) No.38295 of 2016),

CIVIL APPEAL NO. 6177 OF 2017
(Arising out of S.L.P.(C) No.38300 of 2016),

CIVIL APPEAL NO. 6179 OF 2017
(Arising out of S.L.P.(C) No.38303 of 2016),

CIVIL APPEAL NO. 6183 OF 2017
(Arising out of S.L.P.(C) No.38354 of 2016),

CIVIL APPEAL NO. 6188 OF 2017
(Arising out of S.L.P.(C) No.38358 of 2016),

CIVIL APPEAL NO. 6192 OF 2017
(Arising out of S.L.P.(C) No.38364 of 2016),

CIVIL APPEAL NO. 6196 OF 2017
(Arising out of S.L.P.(C) No.38367 of 2016),

CIVIL APPEAL NO. 6199 OF 2017
(Arising out of S.L.P.(C) No.38370 of 2016),

CIVIL APPEAL NO. 6201 OF 2017
(Arising out of S.L.P.(C) No.38373 of 2016),

CIVIL APPEAL NO. 6204 OF 2017
(Arising out of S.L.P.(C) No.1498 of 2017),

CIVIL APPEAL NO. 6208 OF 2017
(Arising out of S.L.P.(C) No.1499 of 2017),

CIVIL APPEAL NO. 6211 OF 2017
(Arising out of S.L.P.(C) No.1639 of 2017),

CIVIL APPEAL NO. 6215 OF 2017
(Arising out of S.L.P.(C) No.1724 of 2017),

CIVIL APPEAL NO. 6220 OF 2017
(Arising out of S.L.P.(C) No.1726 of 2017),

CIVIL APPEAL NO. 6223 OF 2017
(Arising out of S.L.P.(C) No.1728 of 2017),

CIVIL APPEAL NO. 6226 OF 2017
(Arising out of S.L.P.(C) No.1729 of 2017),

CIVIL APPEAL NO. 6229 OF 2017
(Arising out of S.L.P.(C) No.1730 of 2017),

CIVIL APPEAL NO. 6232 OF 2017
(Arising out of S.L.P.(C) No.1731 of 2017),

CIVIL APPEAL NO. 6235 OF 2017
(Arising out of S.L.P.(C) No.3826 of 2017),

CIVIL APPEAL NO. 6238 OF 2017
(Arising out of S.L.P.(C) No.6911 of 2017),

CIVIL APPEAL NO. 6244 OF 2017
(Arising out of S.L.P.(C) No.8928 of 2017),

CIVIL APPEAL NO. 6247 OF 2017
(Arising out of S.L.P.(C) No.8929 of 2017),

CIVIL APPEAL NO. 6251 OF 2017
(Arising out of S.L.P.(C) No.9586 of 2017),

CIVIL APPEAL NO. 6254 OF 2017
(Arising out of S.L.P.(C) No.9734 of 2017),

CIVIL APPEAL NOS. 6257-6258 OF 2017
(Arising out of S.L.P.(C) Nos.10556-10557 of 2017)

CIVIL APPEAL NO. 6261 OF 2017
(Arising out of S.L.P.(C) No.11873 of 2017),

CIVIL APPEAL NO. 6268 OF 2017
(Arising out of S.L.P.(C) No.25536 of 2015),

CIVIL APPEAL NO. 6271 OF 2017
(Arising out of S.L.P.(C) No.38374 of 2016),

CIVIL APPEAL NO. 6273 OF 2017
(Arising out of S.L.P.(C) No.28305 of 2015),

CIVIL APPEAL NO. 6275 OF 2017
(Arising out of S.L.P.(C) No.30167 of 2015),

CIVIL APPEAL NO. 6278 OF 2017
(Arising out of S.L.P.(C) No.30170 of 2015),

CIVIL APPEAL NO. 6280 OF 2017
(Arising out of S.L.P.(C) No.13381 of 2015),

CIVIL APPEAL NO. 6282 OF 2017
(Arising out of S.L.P.(C) No.7731 of 2016),

CIVIL APPEAL NO. 6284 OF 2017
(Arising out of S.L.P.(C) No.7754 of 2016),

CIVIL APPEAL NO. 6286 OF 2017
(Arising out of S.L.P.(C) No.8762 of 2016),

CIVIL APPEAL NO. 6288 OF 2017
(Arising out of S.L.P.(C) No.11404 of 2016),

CIVIL APPEAL NO. 6290 OF 2017
(Arising out of S.L.P.(C) No.11479/2016),

CIVIL APPEAL NO. 6293 OF 2017
(Arising out of S.L.P.(C) No.38296 of 2016),

CIVIL APPEAL NO. 6295 OF 2017
(Arising out of S.L.P.(C) No.38299 of 2016),

CIVIL APPEAL NO. 6297 OF 2017
(Arising out of S.L.P.(C) No.38355 of 2016),

CIVIL APPEAL NO. 6299 OF 2017
(Arising out of S.L.P.(C) No.38360 of 2016)

AND

CIVIL APPEAL NO. 6301 OF 2017
(Arising out of S.L.P.(C) No.38366 of 2016)

J U D G M E N T

KURIAN, J.:

Leave granted.

Whether the subsequent purchasers/assignees/power of attorney holders,
etc., have locus standi to file a petition for a declaration of lapse of
acquisition proceedings under Section 24(2) of The Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter referred to as “the 2013 Act”), is the
only issue arising for consideration in these cases.

The High Court has taken the view in favour of such people. Thus, aggrieved
the NCT of Delhi and Delhi Development Authority are in appeals before this
Court.

At the outset, we may note that in these cases, the land acquisition
proceedings have otherwise lapsed by the operation of Section 24(2) of the
2013 Act since either compensation was not paid or possession was not taken
within five years prior to 01.01.2014, the date of coming into force of the
2013 Act. Thus, the dispute is only on the locus standi.

Shri Amarendra Saran, learned Senior Counsel leading the arguments on
behalf of the appellants submits that in all these cases, the transfer is
in violation of The Delhi Lands (Restrictions on Transfer) Act, 1972
(hereinafter referred to as “the Delhi Act, 1972”). The transfers in favour
of the writ petitioners are hence void, and accordingly, the beneficiary of
an illegal/void transaction is not entitled to file a case for any relief.

Reliance is placed on Sections 3,4,8, and 9 of the 1972 Act, which read as
follows:

1 “3. Prohibition on transfer of lands acquired by Central Government –

No person shall purport to transfer by sale, mortgage, gift, lease or
otherwise any land or part thereof situated in the Union territory of Delhi
which has been acquired by the Central Government under the Land
Acquisition Act, 1984 or under any other law providing for acquisition of
land for a public purpose.

2 4. Regulation on transfer of lands in relation to which acquisition
proceedings have been initiated.

No person shall, except with the previous permission in writing of the
competent authority, transfer or purport to transfer by sale, mortgage,
gift, lease or otherwise any land or part thereof situated in the Union
territory of Delhi, which is proposed to be acquired in connection with the
Scheme and in relation to which a declaration to the effect that such land
or part thereof is needed for a public purpose having been made by the
Central Government under section 6 of the Land Acquisition Act, 1894, the
Central Government has not withdrawn from the acquisition under section 48
of that Act.

xxx xxx xxx

3 8. Restrictions on registration of transfers of land –

Notwithstanding any thing contained in any other law for the time being in
force, where any document required to be registered under the provisions of
clause (a) to clause (e) of sub-section (1) of section 17 of the
Registration Act, 1908, purports to transfer by sale, mortgage, gift, lease
or otherwise any land or part thereof referred to in section 4, no
registering officer appointed under that Act shall register any such
document unless the transferor produces before such registering officer a
permission in writing of the competent authority for such transfer.

4 9. Penalty –

If any person contravenes the provisions of section 3 or section 4, he
shall be punishable with imprisonment for a term which may extend to three
years or with fine or with both.”

Learned Senior Counsel and other learned Counsel further submitted that the
issue is no more res integra in view of the following decisions of this
Court:
(i) U.P. Jal Nigam, Lucknow Through Its Chairman and another v. Kalra
Properties (P) Ltd., Lucknow and others[1],

(ii) Sneh Prabha (Smt.) and others v. State of U.P. and another[2],

(iii) Meera Sahni v. Lieutenant Governor of Delhi and others[3],

(iv) V. Chandrasekaran and another v. Administrative Officer and
others[4],

(v) Rajasthan State Industrial Development and Investment
Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and
others[5] and

U.P. Jal Nigam, Lucknow (supra), is a case where this Court considered the
consequences of a transfer of the land after issuance of notification under
Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as
“the 1894 Act”) in the State of Uttar Pradesh. It was held that any
encumbrances created by the owner after Section 4(1) Notification is
published, does not bind the Government and such a purchaser does not
acquire any title to the property. Therefore, such a purchaser cannot
challenge the validity of the notification or the regularity of the process
of taking possession of the land. To quote paragraph-3:

“3. … It is settled law that after the notification under Section 4(1) is
published in the Gazette any encumbrance created by the owner does not bind
the Government and the purchaser does not acquire any title to the
property. In this case, notification under Section 4(1) was published on 24-
3-1973, possession of the land admittedly was taken on 5-7-1973 and pumping
station house was constructed. No doubt, declaration under Section 6 was
published later on 8-7-1973. Admittedly power under Section 17(4) was
exercised dispensing with the enquiry under Section 5-A and on service of
the notice under Section 9 possession was taken, since urgency was acute,
viz., pumping station house was to be constructed to drain out flood water.
Consequently, the land stood vested in the State under Section 17(2) free
from all encumbrances. It is further settled law that once possession is
taken, by operation of Section 17(2), the land vests in the State free from
all encumbrances unless a notification under Section 48(1) is published in
the Gazette withdrawing from the acquisition. Section 11-A, as amended by
Act 68 of 1984, therefore, does not apply and the acquisition does not
lapse. The notification under Section 4(1) and the declaration under
Section 6, therefore, remain valid. There is no other provision under the
Act to have the acquired land divested, unless, as stated earlier,
notification under Section 48(1) was published and the possession is
surrendered pursuant thereto. That apart, since M/s Kalra Properties,
respondent had purchased the land after the notification under Section 4(1)
was published, its sale is void against the State and it acquired no right,
title or interest in the land. Consequently, it is settled law that it
cannot challenge the validity of the notification or the regularity in
taking possession of the land before publication of the declaration under
Section 6 was published.”

In Sneh Prabha (supra), this Court reiterated the position that any
alienation of land after the publication of the notification under Section
4(1) of the 1894 Act does not bind the Government or the beneficiary under
the acquisition. It has also been held that once the possession of the land
is taken under Section 16 of the Act, the land vests with the Government
free from all encumbrances and the absolute title is vested in the
Government. To quote from paragraph-5:

“5. … It is settled law that any person who purchases land after
publication of the notification under Section 4(1), does so at his/her own
peril. The object of publication of the notification under Section 4(1) is
notice to everyone that the land is needed or is likely to be needed for
public purpose and the acquisition proceedings point out an impediment to
anyone to encumber the land acquired thereunder. It authorises the
designated officer to enter upon the land to do preliminaries etc.
Therefore, any alienation of land after the publication of the notification
under Section 4(1) does not bind the Government or the beneficiary under
the acquisition. On taking possession of the land, all rights, titles and
interests in land stand vested in the State, under Section 16 of the Act,
free from all encumbrances and thereby absolute title in the land is
acquired thereunder. If any subsequent purchaser acquires land, his/her
only right would be subject to the provisions of the Act and/or to receive
compensation for the land. In a recent judgment, this Court in Union of
India v. Shivkumar Bhargava considered the controversy and held that a
person who purchases land subsequent to the notification is not entitled to
alternative site. It is seen that the Land Policy expressly conferred that
right only on that person whose land was acquired. In other words, the
person must be the owner of the land on the date on which notification
under Section 4(1) was published. By necessary implication, the subsequent
purchaser was elbowed out from the policy and became disentitled to the
benefit of the Land Policy.”

In Meera Sahni (supra), this Court dealt with the provisions under the
Delhi Act, 1972. After referring to U.P. Jal Nigam and Sneh Prabha cases
(supra), in paragraph-21 of the judgment, it was held that ... “it is by
now well settled law that under the Land Acquisition Act, the subsequent
purchaser cannot challenge the acquisition proceedings and that he would be
only entitled to get the compensation”.

In V. Chandrasekaran (supra), this Court again addressed the issue as to
whether the subsequent purchaser can challenge the acquisition proceedings.
After referring to some of the earlier judgments, at paragraph-18, the law
has been laid down as follows:

“18. In view of the above, the law on the issue can be summarised to the
effect that a person who purchases land subsequent to the issuance of a
Section 4 notification with respect to it, is not competent to challenge
the validity of the acquisition proceedings on any ground whatsoever, for
the reason that the sale deed executed in his favour does not confer upon
him, any title and at the most he can claim compensation on the basis of
his vendor’s title.”

In Rajasthan State Industrial Development and Investment Corporation
(supra), this Court held that such transactions after initiation of
acquisition proceedings would be void and would not be binding on the
Government. To quote paragraph-13:

“13. There can be no quarrel with respect to the settled legal proposition
that a purchaser, subsequent to the issuance of a Section 4 notification in
respect of the land, cannot challenge the acquisition proceedings, and can
only claim compensation as the sale transaction in such a situation is void
qua the Government. Any such encumbrance created by the owner, or any
transfer of the land in question, that is made after the issuance of such a
notification, would be deemed to be void and would not be binding on the
Government. ...”

On behalf of the respondents, it has been mainly contended that the
subsequent purchasers are persons interested and they have every right to
file a case to protect their interests. It was also pointed out that under
the Delhi Act, 1972, there is no absolute bar on transfer since under
Section 5, the transfer was possible with the permission of the Competent
Authority and that under Section 5, the Competent Authority cannot refuse
to grant the permission except on any of the grounds under sub-Section (3)
of Section 5. To quote Section 5:

5 “5. Application for grant of permission for transfer under section 4 –

6 xxxx xxxx xxxx xxxx

(3) The competent authority shall not refuse to grant the permission
applied for under this section except on one or more of the following
grounds, namely:-

(i) That the land is needed or is likely to be needed for the effective
implementation of the Scheme;

(ii) That the land is needed or is likely to be needed for securing the
objects of the Delhi Development Authority referred to in section 6 of the
Development Act;

(iii) That the land is needed or is likely to be needed for any development
within the meaning of clause (d) of section 2 of the Development Act or for
such things as public building and other public works and utilities, roads,
housing, recreation, industry, business, markets, schools and other
educational institutions, hospitals and public open spaces and other
categories of public uses.”

It was also contended that the 2013 Act has not exempted the acquisitions
under The Delhi Development Act, 1957, and for that matter the Delhi Act,
1972 under the Fourth Schedule to Section 105.

Yet another contention was that in all these cases, the challenge was not
to the acquisition proceedings but for a declaration under Section 24(2) of
the 2013 Act to the effect that by virtue of operation of the said
provision, the acquisition proceedings have lapsed.

“Person interested”, under the 1894 Act, is defined under Section 3(b) of
the Act, which reads as follows:

“3(b) the expression “person interested” includes all persons claiming an
interest in compensation to be made on account of the acquisition of land
under this Act; and a person shall be deemed to be interested in land if he
is interested in an easement affecting the land;”

Under the 2013 Act, “person interested” has been given a much wider meaning
under Section 3(x). To quote:
“3(x). “person interested” means—

all persons claiming an interest in compensation to be made on account of
the acquisition of land under this Act;

the Scheduled Tribes and other traditional forest dwellers, who have lost
any forest rights recognised under the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006;

a person interested in an easement affecting the land;

persons having tenancy rights under the relevant State laws including share-
croppers by whatever name they may be called; and

any person whose primary source of livelihood is likely to be adversely
affected;”

Thus, under the 2013 Act, all persons claiming interest in compensation to
be paid on account of the acquisition of land under the 2013 Act, are
persons interested. Among others, any person whose primary source of
livelihood is likely to be adversely affected is also a person interested.

“Land owner” under the 2013 Act is defined under Section 3(r), which reads
as follows:

“3(r) “land owner” includes any person,—

whose name is recorded as the owner of the land or building or part
thereof, in the records of the authority concerned; or

any person who is granted forest rights under the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
or under any other law for the time being in force; or

who is entitled to be granted Patta rights on the land under any law of the
State including assigned lands; or

any person who has been declared as such by an order of the court or
Authority;

Thus, among others, a person whose name is recorded as owner of the land or
building or part thereof in the records of the Authority concerned, is a
land owner.

“Affected family” has been defined in the 2013 Act under Section 3(c)
which reads as follows :-

“3(c) ?affected family? includes—
a family whose land or other immovable property has been acquired;
a family which does not own any land but a member or members of such
family may be agricultural labourers, tenants including any form of tenancy
or holding of usufruct right, share-croppers or artisans or who may be
working in the affected area for three years prior to the acquisition of
the land, whose primary source of livelihood stand affected by the
acquisition of land;
the Scheduled Tribes and other traditional forest dwellers who have lost
any of their forest rights recognised under the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of
2007) due to acquisition of land;
family whose primary source of livelihood for three years prior to the
acquisition of the land is dependent on forests or water bodies and
includes gatherers of forest produce, hunters, fisher folk and boatmen and
such livelihood is affected due to acquisition of land;
a member of the family who has been assigned land by the State
Government or the Central Government under any of its schemes and such land
is under acquisition;
a family residing on any land in the urban areas for preceding three
years or more prior to the acquisition of the land or whose primary source
of livelihood for three years prior to the acquisition of the land is
affected by the acquisition of such land;”

This definition of affected family also indicates that even a family
residing in the lands sought to be acquired, be it an owner or not, is an
affected family, and if a family or a person is affected, necessarily, he
has a right to approach the Court to protect his interests.

It is also to be specifically noted that the challenge made by the writ
petitioners in the Miscellaneous Application filed by them is not to the
acquisition or to the regularity of the process of acquisition including
the taking of possession. Their only prayer is for a declaration that the
proceedings qua the land referred to in the Application have lapsed by
virtue of the operation of Section 24(2) of the 2013 Act.

All the decisions cited by the learned Senior Counsel appearing for the
appellants, no doubt, have categorically held that the subsequent
purchasers do not have locus standi to challenge the acquisition
proceedings. But in the present case, the challenge is not to the
acquisition proceeding; it is only for a declaration that the acquisition
proceedings have lapsed in view of the operation of Section 24(2) of the
2013 Act, and therefore, the ratio in those cases has no application to
these cases.

It is one thing to say that there is a challenge to the legality or
propriety or validity of the acquisition proceedings and yet another thing
to say that by virtue of operation of a subsequent legislation, the
acquisition proceedings have lapsed.

In all the decisions cited by the learned Senior Counsel for the
appellants, which we have referred to above, this Court has protected the
rights of the subsequent purchaser to claim compensation, being a person
interested in the compensation, despite holding that they have no locus
standi to challenge the acquisition proceedings.

The 2013 Act has made a sea change in the approach on the acquisition of
land and compensation thereof. The only lapse under the 1894 Act was under
Section 11A where what would lapse is the ... “entire proceedings for the
acquisition of land” whereas under Section 24(2) of the 2013 Act, what gets
lapsed is the land acquisition proceedings initiated under the 1894 Act
which has culminated in passing of an award under Section 11 but where
either possession was not taken or compensation was not paid within five
years prior to 01.01.2014. In other words, the land acquisition proceedings
contemplated under Section 24(2) of the 2013 Act would take in both,
payment of compensation and taking of possession within the five year
period prior to 01.01.2014. If either of them is not satisfied, the entire
land acquisition proceedings would lapse under the deeming provision. The
impact of deemed lapse under Section 24(2) is that pervasive. To quote R.F.
Nariman, J. in Delhi Development Authority v. Sukbhir Singh and others[6].
To quote:

“... As is well settled, a deeming fiction is enacted so that a putative
state of affairs must be imagined, the mind not being allowed to boggle at
the logical consequence of such putative state of affairs ... In fact,
Section 24(2) uses the expression “deemed to have lapsed” because the
Legislature was cognisant of the fact that, in cases where compensation has
not been paid, and physical possession handed over to the State/vesting has
taken place, after which land acquisition proceedings could be said to have
been ended. ...” (Paragraph-27).

Thus, on account of the lapse, the encumbrance created in favour of
the State comes to an end, and resultantly, the impediment to encumber the
land also comes to an end. Even, according to the appellants, the transfers
were illegal and void for the reason that there was an impediment for the
transfer. Once the acquisition proceedings lapse, all impediments cease to
exist.

As we have already noted above, the whole face of land acquisition has
changed by the 2013 Act. Section 105 of the 2013 Act has provided that the
provisions of the Act shall not apply to the enactments specified in the
Fourth Schedule. So far, only 13 Acts have been notified under the Fourth
Schedule. Neither The Delhi Development Act, 1957 nor The Delhi Lands
(Restrictions on Transfers) Act, 1972 is included in the Fourth Schedule.

The main purpose of the 2013 Act is clearly stated in the preamble which
reads as follows :-

“An Act to ensure, in consultation with institutions of local self-
government and Gram Sabhas established under the Constitution, a humane,
participative, informed and transparent process for land acquisition for
industrialisation, development of essential infrastructural facilities and
urbanisation with the least disturbance to the owners of the land and other
affected families and provide just and fair compensation to the affected
families whose land has been acquired or proposed to be acquired or are
affected by such acquisition and make adequate provisions for such affected
persons for their rehabilitation and resettlement and for ensuring that the
cumulative outcome of compulsory acquisition should be that affected
persons become partners in development leading to an improvement in their
post acquisition social and economic status and for matters connected
therewith or incidental thereto.”

There is a clear indication that the Act proposes to protect the interest
of those persons, among others who are affected by the acquisition. The
subsequent purchasers/successors, etc., in the cases before us, are all
people affected by the acquisition, and therefore, also they are entitled
to seek a declaration on lapse under the 2013 Act.

The High Court of Karnataka at Bengaluru in Suryaprakash and others v.
State of Karnataka and others[7] has considered a situation of lapse and
locus standi of the subsequent purchaser to file a writ petition for a
declaration on lapse, though not under Section 24(2) of the 2013 Act. At
paragraph-16, it has been held:

“16. … the principle that transferee of land after the publication of
preliminary notification cannot maintain a writ petition challenging the
acquisition, cannot be made applicable to a case where the acquisition
itself has been abandoned and has stood lapsed due to efflux of time on
account of the omission and inaction on the part of the acquiring
authority, particularly because, it is because of the lapse of time and the
abandonment of the acquisition, right accrues to the original owner to deal
with his property including by way of the sale and the purchaser will
acquire right to protect his interest. Hence, the judgment in the case of
Rajasthan State Industrial Development and Investment Corporation v.
Subhash Sindhi Cooperative Housing Society, Jaipur and others (2013) 5 SCC
427, will have no application to the facts of the present case.”

We are of the view that this decision, in principle, applies to the
facts of these appeals as well.

Thus, the subsequent purchaser, the assignee, the successor in interest,
the power of attorney, etc., are all persons who are interested in
compensation/land owners/affected persons in terms of the 2013 Act and such
persons are entitled to file a case for a declaration that the land
acquisition proceedings have lapsed by virtue of operation of Section 24(2)
of the 2013 Act. It is a declaration qua the land wherein indisputably they
have an interest and they are affected by such acquisition. For such a
declaration, it cannot be said that the respondents/writ petitioners do not
have any locus standi.

Thus, we do not find any merit in these appeals and they are accordingly
dismissed. All Interlocutory Applications for Impleadment and Intervention,
other than those by Legal Representatives, are also rejected. Applications
for Impleadment of Legal Representatives are allowed. There shall be no
order as to costs.

In the peculiar facts and circumstances of these cases, the appellants are
given a period of six months to exercise its liberty granted under Section
24(2) of the 2013 Act for initiation of the acquisition proceedings afresh.

We make it clear that we have not gone into the inter se disputes between
the parties in some cases or other claims regarding the ownership.
.......................J.
(KURIAN JOSEPH)

.……………………J.
(R. BANUMATHI)

New Delhi;
May 4, 2017.

-----------------------
[1]

(1996) 3 SCC 124
[2] (1996) 7 SCC 426
[3] (2008) 9 SCC 177
[4] (2012) 12 SCC 133
[5] (2013) 5 SCC 427
[6] (2016) 8 SCALE 655
[7] MANU/KA/3319/2016 (Writ Petition No. 10286-291 of 2014, decided on
05.12.2016).

-----------------------
REPORTABLE

-----------------------
33

failed to appreciate = but not discussed as to why their testimony as to the fact that married sister-in-law (of the deceased) and her husband used to live in village Sabutar, is not believed. - we find that both the courts below have erred in law in holding that the charge under Section 304B read with Section 34 IPC stood proved as against the present appellants. In our opinion, in view of the evidence discussed above, it cannot be said that it is proved beyond reasonable doubt that the present appellants, who are sister-in-law and brother-in-law of the deceased, tortured the victim for any demand of dowry. In our opinion, in the present case which is based on circumstantial evidence it cannot be said that appellants had any common intention with the husband of the deceased in commission of the crime. It is sufficiently shown on the record that they used to live in a different village. Therefore, we are inclined to allow the present appeal. Accordingly, this appeal is allowed, and conviction and sentence recorded as against the present appellants Bibi Parwana Khatoon @ Parwana Khatoon and Md. Hasan @ Hasan Raja is set aside.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURSIDICTION

CRIMINAL APPEAL NO. 888 OF 2017
(Arising out of S.L.P. (Crl.) No. 6630 of 2016)

Bibi Parwana Khatoon @
Parwana Khatoon and another … Appellants

Versus

State of Bihar …Respondent

J U D G M E N T

Prafulla C. Pant, J.

Leave granted.

2. The appellants, who are sister-in-law and brother-in-law of the
deceased, have challenged the judgment and order dated 09.12.2016 passed by
the High Court of Judicature at Patna in Criminal Appeal (SJ) No. 48 of
2014 whereby said Court has dismissed the criminal appeal affirming their
conviction and sentence under Section 304B read with Section 34 of Indian
Penal Code (IPC) recorded by the Ad hoc Additional District Judge, Purnea
in Sessions Trial No. 1219 of 2010 (with Sessions Trial No. 617 of 2011).

3. Prosecution story, in brief, is that Tamkinat Ara @ Bulbul got
married to Md. Parwez Alam on 30.09.2009 and she used to live in her in-
laws’ house. The prosecution case is that after her marriage deceased used
to live with Md. Parwez Alam (husband), Abdul Gaffar (father-in-law),
Baitun Nisha (mother-in-law), Bibi Parwana Khatoon (sister of husband) and
her husband Md. Hasan (both appellants). It is alleged by the informant
Md. Faisal PW-5 (brother of the deceased) that the deceased was killed by
setting her on fire by all the above accused. On receiving telephonic
information on 30.05.2010 from father-in-law of the deceased, PW-5 Md.
Faisal went to see his sister and found that she had died of burn injuries.
On the basis of First Information Report given by Md. Faisal Crime Case
No. 184 of 2010 was registered relating to offence punishable under Section
304B read with Section 34 IPC against all the five accused at Police
Station Khajanchi Hat, Madhubani. PW-7 Arti Kumari Jaiswal, Station House
Officer, started investigation. Dead body of the deceased was sealed and
sent for post mortem examination. PW-6 Dr. Umesh Kumar of Sadar Hospital,
Purnea, conducted post mortem examination on the dead body of Tamkinat Ara
and found following ante mortem injuries: -
“(i) Rigor mortis present in all four limbs and trunk

(ii) Tongue was protruded between teeth

(iii) Burned (burnt) blood clot from/in ear opening

(iv) 100% burn of five degree with smell. Key oil and roasted smell, line
of redness along burn area absent, vesication and sign of inflammation was
absent, formation of granulation tissue absent, indicating post mortem
burnt.”

The Medical Officer opined that the deceased died of asphyxia due to
strangulation.

4. Later, investigation was taken over by PW-8 Lal Babu Prasad who
submitted charge sheet against all the five accused. Accused Baitun Nisha
(mother-in-law of the deceased) died during the course of trial, as such,
case as against her stood abated and the trial court proceeded against
remaining four accused.

5. After framing charge against the accused, the trial court recorded
the evidence of PW-1 Syed Masuf Ahmad, PW-2 Md. Azam Rad, PW-3 Samim
Akhtar, PW-4 Taleba Kauser (brother of the deceased), PW-5 Md. Faisal
(brother of the deceased and informant), PW-6 Dr. Umesh Kumar (who
conducted post mortem examination), PW-7 Arti Kumari Jaiswal (who started
investigation) and PW-8 Lal Babu Prasad (who concluded the investigation).

6. The prosecution evidence appears to have been put to the accused
under Section 313 of Criminal Procedure Code whereafter, on behalf of the
accused, defence evidence was adduced, and DW-1 Md. Mozammil Hussain, DW-2
Md. Shamim, DW-3 Manish Kumar Srivastava, DW-4 Raghunandan Yadav, DW-5
Rahul Kumar, DW-6 Mukesh Kumar, DW-7 Nakir Yadav, DW-8 Dhani Yadav, DW-9
Md. Jasir and DW-10 Sanni Yadav, were got examined.

7. The trial court, after hearing the parties, found all the four
accused guilty of offence punishable under Section 304B read with Section
34 IPC, and convicted them accordingly. Md. Parwez Alam (husband of the
deceased) was sentenced to rigorous imprisonment for ten years, and each
one of the remaining three convicts was sentenced to seven years rigorous
imprisonment.

8. Aggrieved by the judgment and order dated 19.11.2013/ 26.11.2013,
passed by the trial court in Sessions Trial No. 1219 of 2010 (with Sessions
Trial No. 617 of 2011), whereby the accused were convicted and sentenced,
as above, three appeals were filed before the High Court. Criminal Appeal
(SJ) No. 59 of 2014 was filed by Md. Parwez Alam (husband of the deceased),
Criminal Appeal (SJ) No. 20 of 2014 was filed by Abdul Gaffar (father-in-
law of the deceased) and Criminal Appeal (SJ) No. 48 of 2014 was filed by
present appellants Bibi Parwana Khatoon and Md. Hasan. The High Court,
after hearing the parties, allowed the appeal of father-in-law of the
deceased but maintained the conviction and sentence recorded against other
three. Hence, this appeal through special leave by sister-in-law Parwana
Khatoon and brother-in-law Md. Hasan.

9. Our attention is drawn on behalf of the appellants to the testimony
of the defence witnesses relating to the fact that they were not residing
in Kali Prasad Tola, and it is argued that the courts below have failed to
appreciate the same. It is also pointed out that there is no special role
assigned to the appellants in the First Information Report.

10. DW-1 Md. Mozammil Hussain, cousin of husband of the deceased, has
stated that Parwana Khatoon and Md. Hasan used to live in village Sabutar,
and on the day of the incident they were not in village Kali Prasad Tola,
Madhubani, i.e. the place where the deceased and her husband used to live.
DW-4 Raghunandan Yadav, who is resident of Kali Prasad Tola, has also
stated that the present appellants used to live in village Sabutar
(Purnea). This witness belongs to village Sabutar. DW-7 Nakir Yadav also
corroborated the fact that Parwana and her husband Hasan used to live in
Sabutar. This fact is further corroborated by DW-8 Dhani Yadav, DW-9 Md.
Jasir and DW-10 Sanni Yadav, all neighbours of the deceased and her
husband.

11. We have gone through the judgment and order passed by the trial court
(copy Annexure P-9) in which the trial court has mentioned the name of
defence witnesses but not discussed as to why their testimony as to the
fact that married sister-in-law (of the deceased) and her husband used to
live in village Sabutar, is not believed. The High Court has also
committed the same error.

12. Apart from the above, in support of their plea, there are three
documents filed on behalf of the appellants, which are copies of public
documents, to show that they are residents of village Sabutar in District
Purnea. Copy of the Residence Certificate is Annexure A-1, which shows
that Sub Divisional Officer, Sadar, Purnea, has certified on 31.10.2008
that Hasan Raja (appellant No. 2) used to live in village Sabutar, P.S. K.
Nagar, District Purnea. Another document (Annexure A-2) is copy of PAN
issued by Income-tax Department of Government of India, which appears to
have been sent on the address of the account holder Parwana Khatoon
(appellant No. 1) on her address of Sabutar, Purnea, Pin Code 854205. Not
only this, copy of service book (Annexure A-3) of appellant No. 1 Parwana
Khatoon shows that she was Panchayat teacher in primary school, K. Nagar
(Purnea). This document also shows that address of appellant No. 1 is
village Sabutar, P.O. Kajha, Police Station K. Nagar, District Purnea. All
these public documents read with the oral testimony adduced before the
trial court, create serious doubt in the prosecution story, so far it
relates as against the present appellants. (We are not commenting on the
evidence as against the husband of the deceased.)

13. In view of the above discussion of oral and documentary evidence, we
find that both the courts below have erred in law in holding that the
charge under Section 304B read with Section 34 IPC stood proved as against
the present appellants. In our opinion, in view of the evidence discussed
above, it cannot be said that it is proved beyond reasonable doubt that the
present appellants, who are sister-in-law and brother-in-law of the
deceased, tortured the victim for any demand of dowry. In our opinion, in
the present case which is based on circumstantial evidence it cannot be
said that appellants had any common intention with the husband of the
deceased in commission of the crime. It is sufficiently shown on the record
that they used to live in a different village. Therefore, we are inclined
to allow the present appeal.

14. Accordingly, this appeal is allowed, and conviction and sentence
recorded as against the present appellants Bibi Parwana Khatoon @ Parwana
Khatoon and Md. Hasan @ Hasan Raja is set aside. They are acquitted of
charge of offence punishable under Section 304B read with Section 34 IPC.
They are in jail. They shall be released forthwith if not required in
connection with any other crime.

………………………..…….J.
[N.V. Ramana]

………………………..…….J.
[Prafulla C. Pant]
New Delhi;
May 04, 2017.

Section 85 of the Act which deals with the Bar of jurisdiction of Civil Court provides that no suit or other legal proceedings shall lie in any civil court in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by the Tribunal.= whether the suit land is a Wakf property or not. Plaintiff says that it is a Wakf property whereas the defendants say that it is not the Wakf property but it is their self property. This question, in our opinion, can be decided only by the Tribunal and not by the Civil Court Second, once the property is declared to be a Wakf property, a fortiori, whether the sale of such property is made by a person not connected with the affairs of the Wakf or by a person dealing with the affairs of the Wakf, the same becomes void by virtue of Section 51 of the Act unless it is proved that it was made after obtaining prior permission of the Board as provided under the Act. One cannot dispute that the matters falling under Sections 51 and 52 of the Act are also required to be decided by the Tribunal and hence jurisdiction of the Civil Court to decide such matters is also barred by virtue of provisions contained in Section 85 of the Act.

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 6310 OF 2017
(ARISING OUT OF SLP (C) No.13251/2014)

Rajasthan Wakf Board ….Appellant(s)

VERSUS

Devki Nandan Pathak & Ors. …Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by defendant No.6 against the final judgment and
order dated 30.01.2014 passed by the High Court of Judicature for
Rajasthan, Bench at Jaipur in CRP No.400 of 2001 whereby the High Court
allowed the revision petition filed by the respondent Nos.1 to 5 herein and
set aside the order dated 22.02.2001 passed by the Presiding Officer,
Rajasthan Wakf Tribunal, Jaipur, wherein the Tribunal decreed the suit
filed by the plaintiff-respondent No.6 herein against defendant Nos. 1 to 5
in respect of the suit land.
3) In order to appreciate the issue involved in the appeal, which lies
in a narrow compass, it is necessary to state the relevant facts infra.
4) The appellant herein is defendant No. 6 whereas respondent Nos. 1 to
5 are defendant Nos. 1 to 5 and respondent No. 6 is the plaintiff in a suit
out of which this appeal arises.
5) The appellant is a Wakf Board registered under the Waqf Act, 1995
(hereinafter referred to as “the Act”). It has an office at Jaipur in the
State of Rajasthan.
6) There is a property called "Kauria Wali Masjid" situated in Town
Hindaun, Tehsil Hindaun Barpara District Karauli, Rajasthan. The property
is registered as "Wakf" at Serial No. 23, Page No.116 in the list of Wakf
published under Section 5 of the Act. Respondent No. 6 is the Mutawali of
the Masjid.
7) On 05.06.1998, respondent No.5 claiming to be the owner of the land
situated adjacent to “Kauria Wali Masjid” property measuring 37 feet x 34
feet (hereinafter called the “suit land”) sold to respondent Nos.1 to 4 by
deed of sale. This sale gave rise to the dispute between the Wakf
represented by respondent No. 6 on the one hand and Respondent Nos.1 to 5
on the other.
8) Respondent No.6 filed a suit against respondent Nos.1 to 5 and the
appellant before the Rajasthan Wakf Tribunal at Jaipur. The foundation on
which respondent No. 6 (plaintiff) filed the suit for claiming relief
therein, inter alia, was that the “suit land” is the Wakf property or, in
other words, a part of the Wakf property and hence respondent No.5, who is
an individual and unconnected with the affairs of the Wakf, had no right,
title and interest to sell the suit land to anyone much less to respondent
Nos.1 to 4. It was alleged that the sale of the suit land was equally in
contravention of Section 51 of the Act and hence the same was void and
illegal (para 7 of the plaint). It was also alleged that even the
plaintiff, who is a Mutawali of the Masjid (wakf), had no right to sell the
Wakf property or/and any of its part without following the due procedure
prescribed under the Act. Respondent No.6, therefore, claimed a relief
that firstly, respondent Nos.1 to 4 (defendant Nos.1 to 4) should not
forcibly take possession of the suit land and in the alternate the sale in
question be declared void.
9) Respondent Nos.1 to 5 filed the written statement and denied the
claim set up by respondent No.6 in the plaint. According to them, the suit
land was neither the Wakf property and nor a part of any Wakf property. It
was alleged that respondent No.5 being the owner of the suit land had every
right to sell the suit land to respondent Nos.1 to 4 and which he did by
executing the sale deed. It was also alleged that the Tribunal has no
jurisdiction to try the suit and the remedy of the plaintiff is to file
civil suit before the Civil Court for claiming appropriate reliefs. The
Tribunal, on the basis of the pleadings, framed the following issues for
adjudication:
“1. Whether the plaintiff is entitled to file the case?

2. Whether the property in suit is the part of Masjid Kauria Wali?

3. Whether this Board has no jurisdiction to entertain this case?

4. Whether the case is time barred?

5. To what relief the plaintiff is entitled?”

10) The parties adduced evidence. By order dated 22.02.2001, the Tribunal
decreed the suit and accordingly passed an order against respondent Nos.1
to 5. It was held that firstly, the Tribunal has the jurisdiction to try
the suit; secondly, the plaintiff (respondent No.6) is the Mutawali of the
Wakf property and, therefore, competent to file the suit in relation to the
suit land; and thirdly, the suit land is the Wakf property or, in other
words, a part of the Wakf property and, therefore, it is subjected to the
Wakf Act.
11) Felt aggrieved, respondent Nos.1 to 5 filed the revision under
Section 83(9) of the Act in the High Court. By impugned order, the Single
Judge of the High Court allowed the revision and set aside the order of the
Tribunal on the ground that the Tribunal had no jurisdiction to try the
suit and the remedy of respondent No.6 (plaintiff) was to file civil suit
before the Civil Court. The High Court, therefore, did not examine the
merits of the issues arising in the case.
12) Felt aggrieved, defendant No.6-Wakf Board filed this appeal by way of
special leave petition questioning the legality and correctness of the
order of the High Court.
13) Heard Mr. Salman Khurshid, learned senior counsel for the appellant
and Mr. Nitin Bhardwaj and Mr. Praveen Chaturvedi, learned counsel for the
respondents.
14) Mr. Salman Khurshid, learned senior counsel appearing for the
appellant-Wakf Board while assailing the legality and correctness of the
impugned order contended that the High Court erred in holding that the
Tribunal did not have jurisdiction to try the suit out of which this appeal
arises.
15) According to him, reading the averments made in the plaint as a
whole would clearly go to show that the suit filed before the Tribunal was
maintainable and, therefore, it was rightly tried and decreed by the
Tribunal on merits holding the suit land to be the Wakf property.
16) Learned counsel urged that the basic question, which was required to
be decided in the suit as would be clear from issue No. 2, was whether the
suit land is a Wakf property or, in other words, whether it is a part of
Wakf property or not. Learned counsel pointed out from the pleadings that
it has been the case of the plaintiff (respondent No.6 herein) that the
suit land has all along been the part of the Wakf property and hence
neither respondent No.5 nor anyone had any right to sell the said land so
long as the procedure prescribed under the Act for sale of such property is
followed.
17) Learned counsel pointed out that under the Scheme of the Act, the
question as to whether a particular property is a Wakf property or not has
to be tried and decided by the Tribunal under Section 83 of the Act and the
jurisdiction of the Civil Court to decide such question is expressly barred
by Section 85 of the Act.
18) Learned counsel, therefore, urged that the impugned order should be
set aside by holding that the Tribunal has the jurisdiction to try and
decide the suit and the matter be accordingly remitted to the High Court
for deciding the revision on merits with a view to decide as to whether the
Tribunal was justified in holding the suit land to be part of Wakf property
or not.
19) In reply, learned counsel for the respondents (defendant Nos. 1 to 5)
supported the impugned order and contended that it does not need any
interference and the same be upheld by dismissing the appeal.
20) Having heard learned counsel for the parties and on perusal of the
record of the case, we find force in the submission of the learned counsel
for the appellant.
21) The main question that arises for consideration in this appeal is
whether the High Court was justified in holding that the suit was not
capable of being tried by the Tribunal under Section 83 of the Act and the
remedy of the plaintiff was to file a civil suit before the Civil Court.
22) The Waqf Act, 1995 was amended by The Wakf (Amendment) Act, 2013 (Act
No. 27/2013). Since the case at hand is governed by the unamended Act, we
take note of some of the relevant unamended provisions of the Act
hereinbelow.
23) Section 51 of the Act provides that notwithstanding anything
contained in the Wakf Deed, any gift, sale, exchange or mortgage of any
immovable property, which is a Wakf property, shall be void unless it is
effected with the prior sanction of the Board. Section 52 of the Act
empowers the Board to approach the Collector of the District to obtain
possession of such Wakf property, which is alienated in contravention of
Section 51 or Section 56 of the Act. It also provides a right of appeal to
the Tribunal against the order of the Collector passed under Section 52(2)
of the Act. Section 54 of the Act provides that the Chief Executive Officer
to approach the Tribunal to seek an order of eviction against any
encroacher of the Wakf property.
24) Section 83 of the Act empowers the Tribunal to determine any dispute,
question or other matter relating to a Waqf or Wakf property under this
Act. Section 85 of the Act which deals with the Bar of jurisdiction of
Civil Court provides that no suit or other legal proceedings shall lie in
any civil court in respect of any dispute, question or other matter
relating to any Wakf, Wakf property or other matter which is required by or
under this Act to be determined by the Tribunal.
25) Reading the averments made in the plaint in the light of
aforementioned sections, we are of the considered opinion that the Tribunal
was right in its view in holding that it had the jurisdiction to try the
suit on merits whereas the High Court was not so in holding the otherwise.
26) In other words, we are of the view that the Tribunal does have
jurisdiction to decide the question arising in the suit filed by respondent
No.6 and, therefore, the Tribunal rightly tried the suit on merits. The
reasons are not far to seek.
27) In the first place, the main question involved in the suit was
whether the suit land is a Wakf property or not. Plaintiff says that it is
a Wakf property whereas the defendants say that it is not the Wakf property
but it is their self property. This question, in our opinion, can be
decided only by the Tribunal and not by the Civil Court as has been decided
by this Court consistently in Ramesh Gobindram vs. Sugra Hamayun Mirza
Waqf, (2010) 8 SCC 726 and Bhanwar Lal & Anr. Vs. Rajasthan Board of Muslim
Wakf & Ors., (2014) 16 SCC 51). Second, once the property is declared to
be a Wakf property, a fortiori, whether the sale of such property is made
by a person not connected with the affairs of the Wakf or by a person
dealing with the affairs of the Wakf, the same becomes void by virtue of
Section 51 of the Act unless it is proved that it was made after obtaining
prior permission of the Board as provided under the Act. One cannot dispute
that the matters falling under Sections 51 and 52 of the Act are also
required to be decided by the Tribunal and hence jurisdiction of the Civil
Court to decide such matters is also barred by virtue of provisions
contained in Section 85 of the Act.
28) In the light of foregoing discussion, we are unable to concur with
the reasoning and the conclusion arrived at by the High Court as we find
that the High Court while deciding the question did not examine the
question in its proper perspective keeping in view the aforementioned
provisions, their scope and the law laid down in the cases referred supra.

29) As a result, the appeal succeeds and is allowed. The impugned order
is set aside.
30) As a consequence thereof, the matter is remanded to the High Court
for deciding the revision afresh on merits with a view to decide as to
whether the findings of the Tribunal on merits by which the suit was
decreed are correct or not?
31) We, however, make it clear that we have not expressed any opinion on
the merits of the case and hence the High Court would now decide the
revision expeditiously on merits strictly in accordance with law
uninfluenced by any of our observations.

………...................................J.
[R.K. AGRAWAL]

…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi;
May 04, 2017
-----------------------
13

the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, the 'Act of 1986').= the detention order in this case is vitiated by taking into account incidents so far back in the past as would have no bearing on the immediate need to detain him without a trial. The satisfaction of the authority is not in respect of the thing in regard to which it is required to be satisfied. Incidents which are stale, cease to have relevance to the subject matter of the enquiry and must be treated as extraneous to the scope and purpose of the statute.- The influence of the stale incidents in the detention order is too pernicious to be ignored, and the order must therefore go; both on account of being vitiated due to malice in law and for taking into account matters which ought not to have been taken into account There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail.- In Ramesh Yadav v. District Magistrate, Etah and Ors.[9], this Court observed as follows:- “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” - Therefore, in the facts and circumstances of this case, we allow this appeal, and set aside the aforesaid detention order dated 23.11.2016 passed by the Respondent No.2 – Commissioner of Police, Rachakonda Commissionerate, Rangareddy District, Telangana, as also the impugned judgment and order dated 22.03.2017 passed by the High Court of Judicature at Hyderabad in Writ Petition No.43671 of 2016.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 885 OF 2017

SAMA ARUNA ....APPELLANT(S)
VERSUS
STATE OF TELANGANA AND ANR ...RESPONDENT(S)

J U D G M E N T

S.A.BOBDE, J.
The appellant - the wife of the detenu, has preferred this
appeal against the impugned judgment and order dated 22.03.2017 passed by
the High Court of Hyderabad in Writ Petition No.43671 of 2016, whereby the
High Court dismissed the writ petition challenging the order of detention
dated 23.11.2016, issued against the detenu by Respondent No.2–Commissioner
of Police, Rachakonda Commissionerate, Rangareddy District, Telangana.
2. The detenu has been charged for various offences which he had
allegedly committed during the years 2002-2007. Four FIR’s were registered
for the said offences. He was admitted to bail in three FIR’s. In the
fourth FIR Crime No. 221 of 2016, he was arrested on 05.09.2016. To prevent
him from seeking bail, while in judicial custody he was detained under the
Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug
Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986
(for short, the 'Act of 1986').
3. The Respondent No.2 - Commissioner of Police, Rachakonda
Commissionerate, Rangareddy District, Telangana, passed an order of
detention against the detenu on 23.11.2016 under section 3(2) of the Act of
1986, for a unspecified period, from the date of service of the order on
the detenu, and further directed that the detenu be lodged in Central
Prison, Chenchalguda, Hyderabad.
4. The aforesaid detention order was accompanied by grounds for
detention of the same date. The grounds in the detention order carried a
statement informing the detenu of his right to represent against the order
of detention to (i) the detaining authority i.e. Commissioner of Police,
Rachakonda, (ii) the Chief Secretary to Government of Telangana State,
Hyderabad, (iii) the Advisory Board.
5. The Respondent No.1 – State approved the aforesaid detention
order on 01.12.2016 under section 3(3) of the Act of 1986. The Advisory
Board reviewed the case on 02.01.2017 and opined that “there is sufficient
cause for the detention of Sama Sanjeeva Reddy”. After the report of the
Advisory Board, the respondent-State confirmed the detention order on
15.02.2017. Being aggrieved, the appellant- the wife approached the High
Court by filing a writ petition which was dismissed. Hence, this appeal.
6. The main contention of Mr. Vikas Singh, learned Senior Counsel
appearing for the appellant, is that the grounds of detention are stale.
They are based on the incidents which are said to have occurred between the
period from 2002 to 2007 and are relied on by the detaining authority while
forming its opinion and recording its satisfaction that the detenu needs to
be detained on 23.11.2016.
7. The aforesaid contention of Mr. Singh, learned Senior Counsel
for the appellant, may be examined with reference to the detention order.
The detention order mentions six cases as follows:
|Sl. |Case No. |Date of |Date of |Offences under IPC |
|No. | |Incident |Reporting the| |
| | | |incident | |
|1. |Crime No.554/2013 |26.9.2013 |21.11.2013 |447, 427, 506 |
|2. |Crime No.8/2014 |21.11.2014 |23.11.2015 |447, 427 |
|3. |Crime No.361/2016 |2007 |13.08.2016 |363, 384, 420,120B,|
| | | | |Section 4 of AP LG |
| | | | |Act and 25 1(B) of |
| | | | |the Arms Act. |
|4. |Crime No.362/2016 |2007 |13.08.2016 |363, 384, 420,120B,|
| | | | |Section 4 of AP LG |
| | | | |Act and 25 1(B) of |
| | | | |the Arms Act. |
|5. |Crime No.367/2016 |2005 |17.08.2016 |363, 384, 420,120B,|
| | | | |Section 4 of AP LG |
| | | | |Act and 25 1(B) of |
| | | | |the Arms Act. |
|6. |Crime No.221/2016 |2002-03 |05.09.2016 |419, 420, 468, 363,|
| | | | |452, 323, 342, 386,|
| | | | |505 r/w 120B, |
| | | | |Section 4 of AP LG |
| | | | |Act and 25 1(B) of |
| | | | |the Arms Act. |

8. The first two incidents are about three to two years before the
detention order dated 23.11.2016. The other incidents are about 9 to 14
years before the detention order. Peculiarly, though the first two
incidents are mentioned, the detaining authority has not relied on them as
grounds of detention. The detaining authority has relied on the four other
cases which are item nos.3 to 6 as grounds of detention. The report in
these cases was apparently lodged in the year 2016 for some reason best
known to the police. However, that is not of much consequence since the FIR
is in respect of incidents which are old, 9 to 14 years old. It is their
relevance to a grossly belated order of detention which we have to
consider.
9. The detaining authority has pointedly referred to only four
offences of criminal conspiracy, cheating, kidnapping and extortion, in the
limits of Pahadishareef Police Station and Adibatla Police Station of
Rachakonda Commissionerate. In three out of these four cases he has been
granted bail. The State accepted these orders.
10. Each of them are beyond 9 years, up to 14 years, before the
detention orders. They have been considered under a sub-heading which is as
follows:
“THE FOLLOWING FACTS OF THE (4) CASES CONSIDERED AS GROUNDS FOR DETENTION
WHICH WERE COMMITTED BY YOU IN THE RECENT PAST, WOULD PROVE YOUR ACTIVITY
PREJUDICIAL TO THE MAINTENANCE OF PUBLIC ORDER.”

11. The detaining authority has then gone to consider those
grounds, to arrive at the satisfaction that the detenu needs to be detained
in 2016. These grounds are so stale and mildewed that the exercise of the
power of detention based on them appears mala fide in law.
12. The four cases which are old and therefore, stale, pertain to
the period from 2002 to 2007. They pertain to land grabbing and hence, we
are not inclined to consider the impact of those cases on public order etc.
We are satisfied that they ought to have been excluded from consideration
on the ground that they are stale and could not have been used to detain
the detenu in the year 2016 under the Act of 1986 which empowers the
detaining authority to do so with a view to prevent a person from acting in
any manner prejudicial to the maintenance of public order.
13. We are not inclined to accept the justification offered by Mr.
Harin P. Raval, learned Senior Counsel appearing on behalf of the
respondents, that the mere reference to two other cases which are 2-3 years
old should be considered as relevant and proximate grounds of detention,
though the detaining authority itself has not done so. Every statement in
the detention order must be taken to have been made responsibly. Where the
detaining authority has detailed 4 cases and stated that these have been
considered as the grounds of detention it must be considered as true-
speaking. Moreover, those incidents appeared to be cases of ordinary
criminal trespass which would not, in any way, be of much significance
since they do not deal with the disruption of any public order which is
relevant under the law dealing with preventive detention.

14. Section 3(1) confers the power of detention in the following
terms:-
“3(1). The Government may, if satisfied with respect to any boot-
legger, dacoit, drug-offender, goonda, immoral traffic offender or land-
grabber that with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order, it is necessary so to do,
make an order directing that such person be detained.”

The purpose for which a detention order may be passed is confined to
‘preventing him from acting in any manner prejudicial to the maintenance of
public order’.
The term “acting in any manner prejudicial to the maintenance of public
order” is further defined as follows:-
“2. In this Act, unless the context otherwise requires,-
(a) “acting in any manner prejudicial to the maintenance of public order”
means when a bootlegger, a dacoit, a drug-offender, a goonda, an immoral
traffic offender or a land-grabber is engaged or is making preparations for
engaging, in any of his activities as such, which affect adversely, or are
likely to affect adversely, the maintenance of public order:

Explanation:- For the purpose of this clause public order shall be deemed
to have been affected adversely, or shall be deemed likely to be affected
adversely inter alia, if any of the activities of any of the persons
referred to in this clause directly, or indirectly, is causing or
calculated to cause any harm, danger or alarm or a feeling of insecurity
among the general public or any section thereof or a grave wide spread
danger to life or public health:”

A person may be detained under the Act of 1986 with a view to prevent him
from engaging in, or making preparations for engaging, in any such
activities.
15. Obviously, therefore, the power to detain, under the Act of
1986 can be exercised only for preventing a person from engaging in, or
pursuing or taking some action which adversely affects or is likely to
affect adversely the maintenance of public order; or for preventing him
from making preparations for engaging in such activities. There is little
doubt that the conduct or activities of the detenu in the past must be
taken into account for coming to the conclusion that he is going to engage
in or make preparations for engaging in such activities, for many such
persons follow a pattern of criminal activities. But the question is how
far back? There is no doubt that only activities so far back can be
considered as furnish a cause for preventive detention in the present.
That is, only those activities so far back in the past which lead to the
conclusion that he is likely to engage in or prepare to engage in such
activities in the immediate future can be taken into account. In Golam
Hussain alias Gama v. Commissioner of Police, Calcutta and Ors.[1], this
Court observed as follows:-
“No authority, acting rationally, can be satisfied,
subjectively or otherwise, of future mischief merely because long ago the
detenu had done something evil. To rule otherwise is to sanction a
simulacrum of a statutory requirement. But no mechanical test by counting
the months of the interval is sound. It all depends on the nature of the
acts relied on, grave and determined or less serious and corrigible, on the
length of the gap, short or long, on the reason for the delay in taking
preventive action, like information of participation being available only
in the course of an investigation. We have to investigate whether the
causal connection has been broken in the circumstances of each case.”

Suffice it to say that in any case, incidents which are said to have taken
place nine to fourteen years earlier, cannot form the basis for being
satisfied in the present that the detenu is going to engage in, or make
preparation for engaging in such activities.
16. We are, therefore, satisfied that the aforesaid detention order
was passed on grounds which are stale and which could not have been
considered as relevant for arriving at the subjective satisfaction that the
detenu must be detained. The detention order must be based on a reasonable
prognosis of the future behavior of a person based on his past conduct in
light of the surrounding circumstances. The live and proximate link that
must exist between the past conduct of a person and the imperative need to
detain him must be taken to have been snapped in this case. A detention
order which is founded on stale incidents, must be regarded as an order of
punishment for a crime, passed without a trial, though purporting to be an
order of preventive detention. The essential concept of preventive
detention is that the detention of a person is not to punish him for
something he has done but to prevent him from doing it. See G. Reddeiah v.
Government of Andhra Pradesh and Anr.[2] , and P.U. Iqbal v. Union of
India and Ors.[3]

THE SCOPE OF JUDICIAL REVIEW
17. While reviewing a detention order, a court does not substitute
its judgment for the decision of the executive. Nonetheless, the Court has
a duty to enquire that the decision of the executive is made upon matters
laid down by the statute as relevant for reaching such a decision. For
what is at stake, is the personal liberty of a citizen guaranteed to him by
the Constitution and of which he cannot be deprived, except for reasons
laid down by the law and for a purpose sanctioned by law. As early as in
Machinder Shivaji v. The King[4], this Court observed:-
“…… and it would be a serious derogation from that responsibility if
the Court were to substitute its judgment for the satisfaction of the
executive authority and, to that end, undertake an investigation of the
sufficiency of the materials on which such satisfaction was grounded.
The Court can, however, examine the grounds disclosed by the
Government to see if they are relevant to the object which the legislation
has in view, namely, the prevention of acts prejudicial to public safety
and tranquility, for “satisfaction” in this connection must be grounded on
material which is of rationally probative value.”

Later, in the case of Khudiram Das vs. The State of West Bengal and
Others[5], while considering the judicial reviewability of the subjective
satisfaction of the detaining authority, the Court surveyed the area within
which the validity of the subjective satisfaction can be subjected to
judicial scrutiny in the following paragraphs:-
“9. …… There are several grounds evolved by judicial decisions for saying
that no subjective satisfaction is arrived at by the authority as required
under the statute. The simplest case is whether the authority has not
applied its mind at all; in such a case the authority could not possibly be
satisfied as regards the fact in respect of which it is required to be
satisfied. Emperor v. Shibnath Banerji is a case in point. Then there may
be a case where the power is exercised dishonestly or for an improper
purpose: such a case would also negative the existence of satisfaction on
the part of the authority. The existence of 'Improper purpose', that is, a
purpose not contemplated by the statute, has been recognised as an
independent ground of control in several decided cases. The satisfaction,
moreover, must be a satisfaction of the authority itself, and therefore, if
in exercising the power, the authority has acted under the dictation of
another body as the Commissioner of Police did in Commissioner of Police v.
Gordhandas Bhanji and the officer of the Ministry of Labour and National
Service did in Simms Motor Units Ltd. v. Minister of Labour and National
Service, the exercise of the power would be bad and so also would the
exercise of the power be vitiated where the authority has disabled itself
from applying its mind to the facts of each individual case by self-created
rules of policy or in any other manner. The satisfaction said to have been
arrived at by the authority would also be bad where it is based on the
application of a wrong test or the misconstruction of a statute. Where this
happens, the satisfaction of the authority would not be in respect of the
thing in regard to which it is required to be satisfied. Then again the
satisfaction must be grounded 'on materials which are of rationally
probative value'. Machinder v. King. The grounds on which the satisfaction
is based must be such as a rational human being can consider connected with
the fact in respect of which the satisfaction is to be reached. They must
be relevant to the subject-matter of the inquiry and must not be extraneous
to the scope and purpose of the statute. If the authority has taken into
account, it may even be with the best of intention, as a relevant factor
something which it could not properly take into account in deciding whether
or not to exercise the power or the manner or extent to which it should be
exercised, the exercise of the power would be bad.”

18. This Court then dealt with the review of administrative
findings which are not supported with substantial evidence in the following
paragraphs of Khudiram Das (supra):-

“10. …… But in England and in India, the courts stop-short at merely
inquiring whether the grounds on which the authority has reached its
subjective satisfaction are such that any reasonable person could possibly
arrive at such satisfaction. "If", to use the words of Lord Greene, M. R.,
in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation
words which have found approval of the House of Lords in Smith v. Rest
Eller Rural District Council and Fawcett Properties Ltd. v. Buckingham
County Council – ‘the authority has come to a conclusion so unreasonable
that no reasonable authority could ever have come to it, then the courts
can interfere". In such a case, a legitimate inference may fairly be drawn
either that the authority "did not honestly form that view or that in
forming it, he could not have applied his mind to the relevant facts’…….

11. This discussion is sufficient to show that there is nothing like
unfettered discretion immune from judicial reviewability. The truth is that
in a Government under law, there can be no such thing as unreviewable
discretion. "Law has reached its finest moments", said Justice Douglas,
"when it has freed man from the unlimited discretion of some ruler,
some...official, some bureaucrat.... Absolute discretion is a ruthless
master. It is more destructive of freedom then any of man's other
inventions". United States v. Wunderlich and this is much more so in a case
where personal liberty is involved. That is why the courts have devised
various methods of judicial control so that power in the hands of an
individual officer or authority is not misused or abused or exercised
arbitrarily or without any justifiable grounds.”

19. Incidents which are old and stale and in which the detenu has
been granted bail, cannot be said to have any relevance for detaining a
citizen and depriving him of his liberty without a trial. This Court
observed the following in the case of Khudiram Das (Supra):
“The grounds on which the satisfaction is based must be such as
a rational human being can consider connected with the fact in respect of
which the satisfaction is to be reached. They must be relevant to the
subject-matter of the inquiry and must not be extraneous to the scope and
purpose of the statute. If the authority has taken into account, it may
even be with the best of intention, as a relevant factor something which it
could not properly take into account in deciding whether or not to exercise
the power or the manner or extent to which it should be exercised, the
exercise of the power would be bad. Partap Singh v. State of Punjab. If
there are to be found in the statute expressly or by implication matters
which the authority ought to have regard to them, in exercising the power,
the authority must have regard to those matters. The authority must call
its attention to the matters which it is bound to consider.”

20. We are of the view, that the detention order in this case is
vitiated by taking into account incidents so far back in the past as would
have no bearing on the immediate need to detain him without a trial. The
satisfaction of the authority is not in respect of the thing in regard to
which it is required to be satisfied. Incidents which are stale, cease to
have relevance to the subject matter of the enquiry and must be treated as
extraneous to the scope and purpose of the statute.
21. In this case, we find the authority has come to a conclusion so
unreasonable that no reasonable authority could ever reach. A detaining
authority must be taken to know both, the purpose and the procedure of law.
It is no answer to say that the authority was satisfied. In T.A. Abdul
Rahman v. State of Kerela and Ors.[6], this Court observed, where the
authority takes into account stale incidents which have gone by to seed it
would be safe to infer that the satisfaction of the authority is not a
genuine one.
The extent of staleness of grounds in this case compel us to examine
the aspect of malice in law. It is not necessary to say that there was an
actual malicious intent in making a wrong detention order. In Smt. S.R.
Venkataraman v. Union of India and Anr.[7], this Court cited Shearer v.
Shields[8], where Viscount Haldane observed as follows:-
“A person who inflicts an injury upon another person in
contravention of law is not allowed to say that he did so with an innocent
mind; he is taken to know the law, and he must act within the law. He may,
therefore, be guilty of malice in law, although, so far the state of his
mind is concerned, he acts ignorantly and in that sense innocently.”

22. This Court then went on to observe in Smt. S.R. Venkataraman
(supra) as follows:-
“6. It is however not necessary to examine the question of malice in law in
this case, for it is trite law that if a discretionary power has been
exercised for an unauthorised purpose, it is generally immaterial whether
its repository was acting in good faith or in bad faith. As was stated by
Lord Goddard. C.J. in Pilling v. Abergele Urban District Council where a
duty to determine a question is conferred on an authority which state their
reasons for the decision,
and the reasons which they state show that they have taken into account
matters which they ought not to have taken into account, or that they have
failed to take matters into account which they ought to have taken into
account, the court to which an appeal lies can and ought to adjudicate on
the matter.

7. The principle which is applicable in such cases has thus been stated by
Lord Esher, M.R. in The Queen on the Prosecution of Richard Westbrook v.
The Vestry of St. Pancras:
“If people who have to exercise a public duty by exercising their
discretion take into account matters which the Courts consider not to be
proper for the guidance of their discretion, then in the eye of the law
they have not exercised their discretion.”
This view has been followed in Sadler v. Sheffield Corporation.”

23. The influence of the stale incidents in the detention order is
too pernicious to be ignored, and the order must therefore go; both on
account of being vitiated due to malice in law and for taking into account
matters which ought not to have been taken into account.
24. There is another reason why the detention order is unjustified.
It was passed when the accused was in jail in Crime No. 221 of 2016. His
custody in jail for the said offence was converted into custody under the
impugned detention order. The incident involved in this offence is
sometime in the year 2002-2003. The detenu could not have been detained
preventively by taking this stale incident into account, more so when he
was in jail. In Ramesh Yadav v. District Magistrate, Etah and Ors.[9], this
Court observed as follows:-
“6. On a reading of the grounds, particularly the paragraph which we
have extracted above, it is clear that the order of detention was passed as
the detaining authority was apprehensive that in case the detenu was
released on bail he would again carry on his criminal activities in the
area. If the apprehension of the detaining authority was true, the bail
application had to be opposed and in case bail was granted, challenge
against that order in the higher forum had to be raised. Merely on the
ground that an accused in detention as an under-trial prisoner was likely
to get bail an order of detention under the National Security Act should
not ordinarily be passed.”

25. Therefore, in the facts and circumstances of this case, we
allow this appeal, and set aside the aforesaid detention order dated
23.11.2016 passed by the Respondent No.2 – Commissioner of Police,
Rachakonda Commissionerate, Rangareddy District, Telangana, as also the
impugned judgment and order dated 22.03.2017 passed by the High Court of
Judicature at Hyderabad in Writ Petition No.43671 of 2016.

....................J
[S. A. BOBDE]

....................J
[L. NAGESWARA RAO]
NEW DELHI
MAY 03, 2017
-----------------------
[1]
[2] (1974) 4 SCC 530
[3]
[4] (2012) 2 SCC 389
[5]
[6] (1992) 1 SCC 434
[7]
[8] AIR 1950 FC 129
[9]
[10] (1975) 2 SCC 81
[11]
[12] (1989) 4 SCC 741
[13]
[14] (1979) 2 SCC 491
[15]
[16] (1914) AC 808
[17]
[18] (1985) 4 SCC 232

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Friday, May 26, 2017