REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10878 OF 2011
[Arising out of Special Leave Petition (Civil) No.3654 of 2010]
M/S. KAMAL TRADING PRIVATE LIMITED
(NOW KNOWN AS MANAV INVESTMENT
& TRADING CO. LTD.) ...
APPELLANT
Versus
STATE OF WEST BENGAL
& ORS. ... RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by grant of special leave, is directed
against the judgment and order dated 19/8/2009 passed by
2
the High Court at Calcutta dismissing the appeal filed by the
appellant.
3. The appellant, which is a private limited company was
entrusted by seventeen joint owners of the premises known
as "Industry House" at No.10, Camac Street, Calcutta - 700
017 (for short, "the said premises"), to look after the day-
to-day management and maintenance of the said premises
as also to initiate proceedings for and on their behalf. The
seventeen joint owners include respondents 6, 7 and 8
herein and one Pilani Investment (hereinafter referred to as
"owner companies" for convenience). They are seized and
possessed of certain floors of the said premises. The State
of West Bengal requisitioned the said floors under the
provisions of the West Bengal Premises Requisition and
Control (Temporary Provision) Act, 1947 (for short, "the
1947 Act"). Under the 1947 Act, the maximum period of
requisition was fixed at 25 years from the date of initial
order of requisition and the State Government was obliged
3
to release the property under requisition after expiry of 25
years. It is the case of the appellant that, in fact, the
release of the said floors was in contemplation of the
concerned authorities. However, enquiries made by the
appellant revealed that the State Government was planning
to acquire the said premises in exercise of its powers under
the Land Acquisition Act, 1894 (for short, "the LA Act").
The appellant along with owner companies, therefore, filed
Writ Petition No.22859 (W) of 1997 praying for a writ of
mandamus directing the State to release the said floors from
requisition.
4. Instead of releasing the said floors from requisition, the
State Government issued a notification dated 29/7/1997
under Section 4 of the LA Act stating, inter alia, that the said
floors are needed for the public purpose viz. for permanent
office accommodation of Public Works Department. The said
notification was published in the Government Gazette on
12/8/1997. It is the case of the appellant that the owner
4
companies raised objections vide letter dated 8/9/1997
under Section 5A of the LA Act. The Second Land
Acquisition Officer issued notice dated 23/9/1997 fixing date
of hearing of the objections on 26/9/1997. On receipt of the
said notice, the representative of the appellant met the
Second Land Acquisition Collector on 25/9/1997 and by
letter of even date, requested that the hearing fixed on
26/9/1997 be postponed till after 29/9/1997 because the
Constituted Attorney of the appellant was held up in Mumbai
and was unable to attend the hearing. The Second Land
Acquisition Collector issued another notice dated 26/9/1997
fixing the date of hearing of the objections on 30/9/1997.
By letter dated 29/9/1997, the appellant again requested for
adjournment till after 28/10/1997 on the ground that its
Constituted Attorney was unable to attend and the advocate
was out of station. According to the appellant, while they
were waiting for further communication about the date of
hearing, the State Government issued a declaration dated
24/10/1997 under Section 6 of the LA Act, which was
5
published in the Gazette on 29/10/1997. In the said
declaration, it was stated that the Government was satisfied
that the said floors were needed for the public purpose. The
Special Land Acquisition Officer did not accept the
appellant's request for further adjournment and proceeded
to submit report dated 30/9/1997.
5. The appellants along with the owner companies filed
Writ Petition No.25632(W) of 1997 and prayed for quashing
notifications dated 29/7/1997. One of the grounds taken by
them was that the report submitted by the Second Land
Acquisition Officer was vitiated due to violation of the rule of
hearing enshrined in Section 5A(2) of the LA Act and non
application of mind by the concerned officer to the
objections filed under Section 5A(1) of the LA Act.
6. By an order dated 3/12/2003, the learned Single Judge
dismissed both the writ petitions. FMA No.40 of 2004 filed
by the appellant against dismissal of Writ Petition
6
No.25632(W) of 1997 was dismissed by the Division Bench.
Hence, this appeal by special leave.
7. We have heard Dr. Singhvi, learned senior counsel
appearing for the appellant and Mr. Chaudhari, learned
senior counsel appearing for the contesting respondents, at
some length. Though several points are raised in this
appeal, Dr. Singhvi addressed us on violation of Section 5A
of the LA Act as according to him, this point goes to the root
of the matter.
8. Dr. Singhvi submitted that hearing contemplated under
Section 5A of the LA Act is not an empty formality. He
submitted that the said right has been raised to the level of
a fundamental right by this Court. Learned senior counsel
argued that the acquisition of the land is a serious matter
and when the State decides to deprive a person of his
property by taking recourse to LA Act, it is bound to afford
him an opportunity to file objections under Section 5A(1) of
7
the LA Act and of being heard by the Collector in terms of
Section 5A(2) of the LA Act. Learned senior counsel then
submitted that the Second Land Acquisition Officer wrongly
rejected the genuine prayer made by the appellant vide
letter 29/9/1997 for adjournment on the ground that the
counsel was out of station. He argued that even if the
concerned officer was not inclined to adjourn the case, he
was duty bound to consider the objections raised by the
appellant with necessary seriousness and decide the same
by assigning reasons. Dr. Singhvi submitted that although
the report of the Second Land Acquisition Officer makes a
mention of the objections raised by the appellant, but the
same have not at all been dealt with and, thus, the report
made by the Second Land Acquisition Officer, which
contained recommendations for the acquisition of land
suffers from the vice of non application of mind. In support
of his submissions, Dr. Singhvi relied upon the judgments of
this Court in U
nion of India v. Mukesh Hans1
,
1 (2004) 8 SCC 14
8
Hindustan Petroleum Corporation Ltd. v. Darius
Shapu
r Chenai & Ors.2
,
Dev Saran v. State of Uttar
Pr
adesh3
, R
adhy Shyam V. State of Uttar Pradesh4
.
9. Mr. Chaudhary, learned senior counsel for the
respondents argued that the Second Land Acquisition Officer
did not commit any illegality by declining the appellant's
request for adjournment because the sole object of such
request was to delay finalization of the acquisition
proceedings. Learned senior counsel emphasized that if the
counsel for the appellant was not available on 30/9/1997,
i.e., the date to which the hearing was adjourned by the
Second Land Acquisition Officer, the appellant should have
made alternative arrangement and the concerned officer did
not commit any error by declining the repeated request for
adjournment made on its behalf. Mr. Chaudhary then
submitted that the report submitted by the Special Land
Acquisition Officer does not suffer from the vice of non
2 (2005) 7 SCC 627
3 (2011) 4 SCC 769
4 (2011) 5 SCC 553
9
application of mind because he had duly considered the
objections raised by the appellant. In support of his
argument, he relied upon the judgment of this Court in
Jayabheri Properties Private Limited & Ors. v. State
of
Andhra Pradesh & Ors.5
where according to him, a
similar contention raised by the appellants therein was
rejected on the ground that adequate opportunity had been
given to the appellants to voice their objections and the
objections were duly considered by the Special Deputy
Collector. Counsel submitted that in the circumstances, the
appeal may be dismissed.
10. Section 5A(1) of the LA Act gives a right to any person
interested in any land which has been notified under Section
4(1) as being needed or likely to be needed for a public
purpose to raise objections to the acquisition of the said
land. Sub-section (2) of Section 5A requires the Collector to
give the objector an opportunity of being heard in person or
by any person authorized by him in this behalf. After
5 (2010) 5 SCC 590
1
hearing the objections, the Collector can, if he thinks it
necessary, make further inquiry. Thereafter, he has to
make a report to the appropriate Government containing his
recommendations on the objections together with the record
of the proceedings held by him for the decision of the
appropriate Government and the decision of the appropriate
Government on the objections shall be final. It must be
borne in mind that the proceedings under the LA Act are
based on the principle of eminent domain and Section 5A is
the only protection available to a person whose lands are
sought to be acquired. It is a minimal safeguard afforded to
him by law to protect himself from arbitrary acquisition by
pointing out to the concerned authority, inter alia, that the
important ingredient namely `public purpose' is absent in the
proposed acquisition or the acquisition is mala fide. The LA
Act being an ex-proprietary legislation, its provisions will
have to be strictly construed.
11. Hearing contemplated under Section 5A(2) is necessary
to enable the Collector to deal effectively with the objections
1
raised against the proposed acquisition and make a report.
The report of the Collector referred to in this provision is not
an empty formality because it is required to be placed before
the appropriate Government together with the Collector's
recommendations and the record of the case. It is only
upon receipt of the said report that the Government can
take a final decision on the objections. It is pertinent to note
that declaration under Section 6 has to be made only after
the appropriate Government is satisfied on the consideration
of the report, if any, made by the Collector under Section
5A(2). As said by this Court in Hindustan Petroleum
Limited, the appropriate Government while issuing
declaration under Section 6 of the LA Act is required to apply
its mind not only to the objections filed by the owner of the
land in question, but also to the report which is submitted by
the Collector upon making such further inquiry thereon as he
thinks necessary and also the recommendations made by
him in that behalf. Sub-section (3) of Section 6 of the LA
Act makes a declaration under Section 6 conclusive evidence
1
that the land is needed for a public purpose. Formation of
opinion by the appropriate Government as regards the public
purpose must be preceded by application of mind as regards
consideration of relevant factors and rejection of irrelevant
ones. It is, therefore, that the hearing contemplated under
Section 5A and the report made by the Land Acquisition
Officer and his recommendations assume importance. It is
implicit in this provision that before making declaration
under Section 6 of the LA Act, the State Government must
have the benefit of a report containing recommendations of
the Collector submitted under Section 5A(2) of the LA Act.
The recommendations must indicate objective application of
mind.
12. We may make a brief reference to the judgments on
which reliance has been placed by Dr. Singhvi, which
support the view taken by us.
1
13. In M
unshi Singh v. Union of India6
, this Court while
dealing with Section 5A of the LA Act observed as under :
"7. Section 5-A embodies a very just and
wholesome principle that a person whose
property is being or is intended to be
acquired should have a proper and
reasonable opportunity of persuading the
authorities concerned that acquisition of the
property belonging to that person should not
be made. ... The legislature has, therefore,
made complete provisions for the persons
interested to file objections against the
proposed acquisition and for the disposal of
their objections. It is only in cases of
urgency that special powers have been
conferred on the appropriate Government to
dispense with the provisions of Section 5-A."
14. In Om Pr
akash v. State of Uttar Pradesh7
, referring
to its earlier judgment in State of Punjab v. Gurdial
Singh
8
, this Court raised the right under Section 5A of the
LA Act to the level of fundamental right and observed that
inquiry under Section 5A is not merely statutory but also has
a flavour of fundamental rights under Articles 14 and 19 of
6 (1973) 2 SCC 337
7 (1998) 6 SCC 1
8 (1980) 2 SCC 471
1
the Constitution though right to property has now no longer
remained a fundamental right, at least, observation
regarding Article 14 vis-`-vis Section 5A of the LA Act would
remain apposite.
15. In Mukesh Hans, this Court reiterated that right of
representation and hearing contemplated under Section 5A
is a very valuable right of a person whose property is sought
to be acquired and he should have appropriate and
reasonable opportunity of persuading the concerned
authorities that the acquisition of the property belonging to
that person should not be made. This court further held that
the right given to an owner/person interested under Section
5A to object to the acquisition proceedings is not an empty
formality and is a substantive right which can be taken away
for good and valid reason and within the limitations
prescribed under Section 17(4) of the LA Act.
1
16. In Hindustan Petroleum Corporation, this Court
again referred to Om Prakash and observed that it is trite
that hearing given to a person must be an effective one and
not a mere formality. This Court observed that formation of
opinion as regards the public purpose as also suitability
thereof must be preceded by application of mind as regards
consideration of relevant factors and rejection of irrelevant
ones. This Court further observed that the State in its
decision-making process must not commit any misdirection
in law. This Court observed that it cannot be disputed that
Section 5A of the LA Act confers a valuable important right
and having regard to the provisions contained in Article 300-
A of the Constitution, it has been held to be akin to a
fundamental right. Pertinently, this Court made it clear that
in a case where there has been total non-compliance or
substantial non-compliance with the provisions of Section 5A
of the LA Act, the Court cannot fold its hands and refuse to
grant relief to the appellant. Again in Dev Saran, this Court
reiterated the same view.
1
17. In Radhy Shyam, this Court was considering a case
where the State had invoked urgency clause under Section
17(4) and dispensed with inquiry under Section 5A. This
Court observed that the legislation which provides for
compulsory acquisition of the private property by the State
falls in the category of ex-propriatory legislation and such
legislation must be construed strictly. The property of a
citizen cannot be acquired by the State without complying
with the mandate of Sections, 4, 5A and 6 of the LA Act.
18. The decision of this Court in Jayabheri on which
counsel for the respondent has placed reliance does not take
any contrary view. The Court had adverted to the facts of
that case and concluded that there was no violation of
Section 5A of the LA Act.
1
19. According to the appellant, notification under Section 4
of the LA Act was not served on owner companies.
However, upon coming to know of this notification, the
appellant vide their letter dated 8/9/1997 submitted
objections running into four pages containing 8 paragraphs.
We have already noted that the Second Land Acquisition
Officer adjourned the hearing on one occasion as requested
by the appellant. He, however, refused to adjourn the
matter any further. The second request was rejected. We
feel that looking to the nature of the issues involved, the
Second Land Acquisition Officer could have adjourned the
proceedings after putting the appellant to terms because
hearing the representative of the owner companies was
mandatory. In any event, if he did not want to adjourn the
proceedings and wanted to consider the objections in the
absence of counsel for the owner companies and assuming
such a course is permissible in law, he should have dealt
with the objections carefully and not in such a lighthearted
manner because heavy responsibility rested on his
1
shoulders. In the report, he has noted the objections as
under:
"(i) Notification U/S 4 has not been published
in the Newspapers nor publicly notified.
(ii) Premise is under requisition under the W
Bengal Premises Requisition & Control
(Temporary Provisions) Act, 1947 from
16/09/72 and is about to complete 25
years on 15/09/97 when as per the Law
release of the premises is expected.
(iii) Anticipating impending release, tie-up has
been made to accommodate foreign
ventures/industrialists.
(iv) LA Collector has shown colourful authority
by extending this acquisition proceeding."
20. He has then noted that the officers of the Acquiring
Body vehemently protested against the statements made in
the appellant's letter and stated that the said statements are
false, arbitrary and groundless and they simply endeavour to
oust the Acquiring Body by hook or by crook. The
paragraphs which contain the submissions and the so-called
1
reasons of the Second Land Acquisition Officer need to be
quoted.
"Heard the officers present from the
Requiring Body. They vehemently
protested as regards the statements
contained in this particular letter. Their
submissions in short that the statements
made by the interested persons are all fake,
arbitrary and groundless. They simply
endeavour to oust the Requiring Body by
hook or crook in order to grab this office
space so that in turn can realize higher
rent. Further, the purpose of the Requiring
Body is very much public oriented and if it
is no acquired they will suffer immensely.
They further submitted that acquisition
proceeding to be completed as quickly as
possible inasmuch as they have the time
bound programmes to implement it as per
guidelines of Government for the greater
interest of public.
In view of these circumstances and for
greater interest of the public, the
submissions made by the interested
persons by their letter dated 8/9/1997 are
overruled."
21. By no stretch of imagination, it can be said that the
Second Land Acquisition Officer had applied his mind to the
2
objections raised by the appellant. The above-quoted
paragraphs are bereft of any recommendations. The Second
Land Acquisition Officer has only reproduced the contentions
of the officers of the Acquiring Body. The objections taken
by the appellants are rejected on a very vague ground.
Mere use of the words `for the greater interest of public'
does not lend the report the character of a report made after
application of mind. Though in our opinion, the declaration
under Section 6 of the LA Act must be set aside because the
appellant was not given hearing as contemplated under
Section 5A(2) of the LA Act, which is the appellant's
substantive right, we must record that in the facts of this
case, we are totally dissatisfied with the report submitted by
the Second Land Acquisition Officer. His report is utterly
laconic and bereft of any recommendations. He was not
expected to write a detailed report but, his report, however
brief, should have reflected application of mind. Needless to
say that as to which report made under Section 5A(2) could
be said to be a report disclosing application of mind will
2
depend on the facts and circumstances of each case.
22. Having examined this case, in the light of the law laid
down by this Court, we are of the opinion that the High
Court wrongly rejected the prayer made by the appellant
that the notification under Section 4 and declaration under
Section 6 of the LA Act be quashed and set aside. The
impugned judgment and order of the High Court, therefore,
needs to be set aside and is, accordingly, set aside. Since
no hearing was given to the appellant resulting in non
compliance of Section 5A of the LA Act, the declaration
under Section 6 of the LA Act dated 24/10/1997 published in
the Government Gazette on 29/10/1997 must be set aside
and is set aside. In view of the judgment of the Constitution
Bench of this Court in Padma Sundara Rao (Dead) & Ors
v.
State of T.N. & Ors9
, the State Government cannot now
rely upon notification dated 29/7/1997 for the purposes of
issuing fresh declaration under Section 6(1) of the LA Act.
The said notification dated 29/7/1997 issued under Section
9 (2002) 3 SCC 533
2
4 is also, therefore, set aside. It would be, however, open
to the State Government to initiate fresh land acquisition
proceedings in accordance with law if it so desires.
23. We make it clear that nothing said by us in this
judgment should be treated as expression of our opinion on
the merits of the case of either side.
24. The appeal is disposed of in the aforestated terms.
.....................................................J.
(G.S. SINGHVI)
.....................................................J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
DECEMBER 13, 2011.
