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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 204-205 OF 2004
Bhimandas Ambwani (D) Thr. Lrs. …Appellant
Versus
Delhi Power Company Limited …Respondents
with
C.A. No. 203/2004
O R D E R
CIVIL APPEAL NOS. 204-205 OF 2004
1. These appeals have been preferred against the impugned
judgment and order dated 22.3.2002, passed by Delhi High
Court in LPA No.46 of 1983 and judgment and order dated
21.5.2002 passed in Review Application C.M. No.893 of 2002
therein by way of which the appeal filed by the respondents
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against the judgment and order of the learned Single Judge
dated 26.11.1982 had been allowed.
2. Facts and circumstances giving rise to these appeals are that :-
A. The appellant had been conferred title over the land in Khasra
No.307 admeasuring 3 bighas and 3 biswas situate in the revenue
estate of village Kilokri, Delhi and the Conveyance Deed for the same
was registered on behalf of the President of India in favour of the
appellant on 6.6.1962.
A Notification under Section 4 of the Land Acquisition Act,
1894 (hereinafter referred to as the ‘Act’) was issued on 5.3.1963 in
respect of the land admeasuring 139 bighas and 2 biswas including the
aforesaid land of the appellant. A declaration under Section 6 of the
Act was made in respect of the said land on 22.8.1963. The Land
Acquisition Collector made the award under the Act on 29.11.1963.
However, no award was made in respect of the land measuring 23
bighas and 7 biswas including the suit land as it had been shown to be
the land of Central Government. However, the possession of the land
in respect of which the award was made and the land transferred to the
appellant was also taken and the Union of India handed it over to
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Delhi Electric Supply Units (for short ‘DESU’) for the construction of
staff quarters on 5.7.1966. The appellant claimed to have been
deprived of the land without paying any compensation whatsoever,
thus, there was a regular correspondence by the appellant and in view
thereof Section 4 Notification under the Act was issued on 7.10.1968
in respect of the land admeasuring 31 bighas and 15 biswas including
the land in dispute. The said Notification under Section 4 was not
acted upon, but a supplementary award No. 1651-A dated 16.2.1974,
was made in respect of the land in dispute, making reference to
Section 4 Notification dated 5.3.1963.
B. Aggrieved, the appellant filed Writ Petition No.307 of 1972
before Delhi High Court and the said writ petition was disposed of
vide judgment and order dated 26.11.1982 making it clear that
acquisition proceedings emanating from Notification dated 5.3.1963
came to an end rather stood superseded by second Notification dated
7.10.1968 and therefore, supplementary award No.1651-A dated
16.2.1974 was illegal and without jurisdiction and thus, the award was
quashed. The respondents were directed to handover the vacant
possession of the suit property to the appellant by 31.12.1983.
However, liberty was given to the State to issue a fresh Notification
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under Section 4 of the Act within a period of one year and till then the
possession could be retained by the respondents.
C. It was in view thereof, a Notification dated 26.3.1983 was
issued under Section 4 of the Act in respect of the suit land and in the
meanwhile, the respondents preferred LPA No.46 of 1983 against the
said judgment and order of the learned Single Judge dated 26.11.1982.
D. Declaration under Section 6 of the Act dated 30.5.1983 was
issued in respect of the suit land and the respondents did not complete
the acquisition proceedings rather abandoned the same.
E. The Division Bench allowed the said LPA vide judgment and
order dated 22.3.2002. Review Petition against the said LPA filed by
the appellant was dismissed on 21.5.2002.
Hence, these appeals.
3. Shri Arvind Kumar and Ms. Henna George, learned counsel
appearing for the appellant have submitted that there had been 3
successive Notifications under Section 4 of the Act. Therefore, the
second Notification superseded the first and the third Notification
superseded the second notification. In response to the first Section 4
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Notification there was no award as the Land Acquisition Collector
considered that the suit land belonged to the Central Government. The
supplementary award was made subsequent to the second Section 4
Notification making reference to the first Section 4 Notification dated
5.3.1963 which had already elapsed. The learned Single Judge has
rightly decided the issue and in pursuance of the same once the third
Section 4 Notification was issued on 26.3.1983 and no further
proceedings were taken, it also stood elapsed. Therefore, in law, there
had been no proceedings regarding acquisition of the land in dispute.
The respondent-authorities cannot be permitted to encroach upon the
land of the appellant without resorting to the procedure prescribed by
law. The Division Bench erred in reversing the judgment of the
learned Single Judge under the misconception that there was a valid
award in respect of the land in dispute as it could be made referable to
Notification under Section 4 dated 7.10.1968 and therefore, the
appeals deserve to be allowed.
4. Per contra, Ms. Avnish Ahlawat, learned counsel appearing for
the respondent no.1 and Shri Vishnu Saharya, learned counsel
appearing for DDA have opposed the appeal contending that their
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land had been acquired by the Union of India and handed over to the
respondent no.1 after taking the amount of compensation from it.
Therefore, the said respondent cannot be penalised at such a belated
stage for the reason that DESU has deposited a sum of Rs.10,16,400/-
towards the price of land on 24.5.1966. The judgment of the High
Court does not require to be interfered with and thus, the appeals are
liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6. There cannot be any dispute to the settled legal proposition that
successive Notifications under Section 4 or successive Declarations
under Section 6 of the Act can be made, however, the effect of the
same would be that earlier notification/declaration stands obliterated/
superseded and in such a fact-situation, it would not be permissible for
either of the parties to make any reference to the said notifications/
declarations which stood superseded.
7. In Bhutnath Chatterjee v. State of West Bengal & Ors.,
(1969) 3 SCC 675, this Court held that where second Section 4
Notification has been issued, the market value is to be determined in
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terms of the later notification for the reason that there was an intention
to supersede the previous notification and if the Government did not
choose to explain the reasons which persuaded it to issue the second
notification, the court is justified in inferring that it was intended to
supersede the earlier notification by the later notification.
8. In Land Acquisition Officer-cum-RDO, Chevella Division,
Ranga Reddy District v. A. Ramachandra Reddy & Ors., AIR
2011 SC 662, while dealing with the same issue, this Court held:
“….. the Government after considering the facts
and circumstances, with a view to avoid further
challenge, issued a fresh notification dated
9.9.1993 (gazetted on 19.11.1993) followed by
final declaration dated, 16.2.1994. The State
Government did not subsequently cancel/rescind/
withdraw the notifications dated 9.9.1993 and
16.2.1994. The State Government had clearly
abandoned the earlier notifications dated
3.1.1990 and 10.l.1990 by issuing the subsequent
notifications dated 9.91993 and 16.2.1994. The
appellant cannot therefore contend that the second
preliminary notification is redundant or that first
preliminary notification continues to hold
good…..” (Emphasis added)
(See also : Raghunath & Ors. v. State of Maharashtra & Ors., AIR
1988 SC 1615; Hindustan Oil Mills Ltd. & Anr. vs. Special Deputy
Collector (Land Acquisition), AIR 1990 SC 731; and Raipur
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Development Authority v. Anupan Sahkari Griha Nirman Samiti
& Ors., (2000) 4 SCC 357).
9. In view of the above, Section 4 Notification dated 26.3.1983
and Declaration under Section 6 dated 13.5.1983 superseded all
earlier notification/declaration. However, no proceedings were taken
in pursuance of the said notification/declaration issued in the year
1983 and after commencement of the Amendment Act 1987, the said
notification/declaration made in the year 1983 stood elapsed as no
award had been made within the period stipulated under the Act.
Thus, there can be no sanctity to any of the acquisition proceedings
initiated by the respondents so far as the suit land is concerned,
though the appellant stood dispossessed from his land in pursuance of
the Notification under Section 4 dated 5.3.1963. Thus, we have no
hesitation in making a declaration that the appellant had been
dispossessed without resorting to any valid law providing for
acquisition of land. The Court is shocked as the appellant had been
dispossessed from the land during the period when right to property
was a fundamental right under Articles 31A and 19 of the Constitution
of India and subsequently became a constitutional and human right
under Article 300A.
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10. This Court dealt with a similar case in Tukaram Kana Joshi &
Ors. thr. Power of Attorney Holder v. Maharashtra Industrial
Development Corporation & Ors., (2013) 1 SCC 353, and held :
“……There is a distinction, a true and concrete
distinction, between the principle of "eminent
domain" and "police power" of the State. Under
certain circumstances, the police power of the
State may be used temporarily, to take possession
of property but the present case clearly shows that
neither of the said powers have been exercised. A
question then arises with respect to the authority or
power under which the State entered upon the
land. It is evident that the act of the State amounts
to encroachment, in exercise of "absolute power"
which in common parlance is also called abuse of
power or use of muscle power. To further clarify
this position, it must be noted that the authorities
have treated the land owner as a 'subject' of
medieval India, but not as a 'citizen' under our
constitution.
xx xx xx
Depriving the appellants of their immovable
properties, was a clear violation of Article 21 of
the Constitution.
In a welfare State, statutory
authorities are bound, not only to pay adequate
compensation, but there is also a legal obligation
upon them to rehabilitate such persons.
The nonfulfillment of their obligations would tantamount
to forcing the said uprooted persons to become
vagabonds or to indulge in anti-national activities
as such sentiments would be born in them on
account of such ill-treatment. Therefore, it is not
permissible for any welfare State to uproot a
person and deprive him of his
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fundamental/constitutional/human rights, under the
garb of industrial development.
The appellants have been deprived of their
legitimate dues for about half a century. In such a
fact-situation, we fail to understand for which class
of citizens, the Constitution provides guarantees
and rights in this regard and what is the exact
percentage of the citizens of this country, to whom
Constitutional/statutory benefits are accorded, in
accordance with the law”.
11. The instant case is squarely covered by the aforesaid judgment
in Tukaram’s case (supra) and thus, entitled for restoration of
possession of the land in dispute. However, considering the fact that
the possession of the land was taken over about half a century ago and
stood completely developed as Ms. Ahlawat, learned counsel has
submitted that a full-fledged residential colony of employees of
DESU has been constructed thereon, therefore, it would be difficult
for respondent no.1 to restore the possession.
12. In such a fact-situation, the only option left out to the
respondents is to make the award treating Section 4 notification as, on
this date, i.e. 12.2.2013 and we direct the Land Acquisition Collector
to make the award after hearing the parties within a period of four
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months from today. For that purpose, the parties are directed to
appear before Land Acquisition Collector, C/o The Deputy
Commissioner, South M.B. Road, Saket, New Delhi on 26.2.2013.
The appellant is at liberty to file a reference under Section 18 of the
Act and to pursue the remedies available to him under the Act.
Needless to say that the appellant shall be entitled to all statutory
benefits.
13. With these directions, the appeals are allowed. The judgments
impugned herein are set aside.
C.A. No. 203/2004
14. In view of the order passed in C.A. Nos. 204-205/2004, the
appeal is dismissed.
..………………………….J.
(Dr. B.S. CHAUHAN)
.…………………………..J.
(V. GOPALA GOWDA)
New Delhi;
February 12, 2013
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