JUDGMENT
Dilip Kumar Seth, J.
1. This appeal arises out of a judgment and order dated 20th of June, 2003 passed by the learned Single Judge in WP No. 1521KW) of 2001. In connection with the said appeal, an application for stay was filed. The appeal has since been assigned before us. The introduction:
The introduction:
2. Mr. P.C. Sen, Senior Counsel, appearing on behalf of the appellant/writ petitioner, insisted upon grant of an ad-interim order since opposed by Mr. Jayanta Mitter, Senior Counsel for the respondent No. 5, Mr. P.K. Roy, Senior Counsel for respondent Nos. 4 and 6, and Mr. Sridhar Panja and Mr. Subir Pal appearing for the State and for the Union of India respectively. In the order dated
30th June, 2003, we had occasion to find that virtually we are to deal with the merit of the writ petition while deciding the question of grant of ad interim order. At this stage, all the learned Counsel appearing on behalf of the respective parties insisted that the writ petition should also be heard along with the appeal in order to shorten the litigation in the exigency of the situation. Having regard to facts and circumstances of the case, by consent of the respective parties, the records of the writ petition was also called for and was decided to be heard along with the appeal by or under the said order dated 30th June, 2003. On 21st of November, 2003, an ad interim order was issued with certain conditions in view of the situation then prevailing. Ultimately, the matter was argued by the respective Counsel for days together. Each of the Counsel had taken considerable period of time for placing their respective cases and had argued the case in threadbare. We shall deal with the respective cases at appropriate stage. As desired by the parties, we took up a consolidated hearing of the appeal and the writ petition. In our view, the decision in the writ petition and the appeal would ultimately dispose of the matter altogether and would shorten the litigation as proposed by the respective parties. We, therefore, hereby propose to dispose of both the appeal and the writ petition together as hereafter.
The scope:
3. Before we proceed further, we may indicate the brief outline of the facts, necessary for the purpose of determining the question at issue, We may also indicate that the Official Liquidator and the Commissioner of Provident Fund had also attempted to intervene. We need not go into those questions. The disputes involved in this case are between the appellant/writ petitioner and the National Highway Authority/Competent Authority vis-a-vis the State of West Bengal and the Union of India. Whereas the Official Liquidator and the Commissioner of Provident Fund are claiming interest in the compensation payable on account of the acquisition or the property over which the disputes between the appellants and the respondents are revolving. Both these authorities have ways and means to lay its respective claim over the amount receivable by the appellant/writ petitioner on account of the acquisition of the land or otherwise. It would really complicate the issues and we would be required to enter into matters, which are completely foreign to the issues involved. We, therefore, leave these questions open and do not propose to enter into those disputes. The Official Liquidator or the Commissioner of Provident Fund, if they have any claim or interest, they may proceed in accordance with law as they may be advised. The decision in this appeal or the writ petition has nothing to do with their claim or interest. There are adequate provisions in the respective law, namely, the Companies Act and the Employees Provident Fund Act for realization of the respective dues of the respective authorities to which the respective authorities may resort to.
The facts:
4. A Notification under Section 3A of the National Highways Act, 1956 (NH Act) was issued on 11th of June, 1998. This Notification was published in various newspapers on 23rd of June, 1998. Under the said Notification, intention to acquire various lands for the purpose of construction of the National Highway was declared by the Union of India. This Notification included some of the lands belonging to the writ petitioner/appellant. A report under Section 3D in respect of lands with regard to which no objection was raised was submitted on 19th of August, 1998 by the Competent Authority. Another report in respect of lands with regard to which objections were raised was submitted by the Competent Authority on 30th of October, 1998. Upon receipt of these reports, a declaration under Section 3D was published in the Official Gazette on
23rd of November, 1998. On 16th January, 1999, copies of the Notification under Section 3G(3) were published in the daily newspaper including Bartamaan wherein the description of the land given under Section
3A(2) was reprinted under Section 3G(4). In respect of the Notification under Section 3A(1), no objection was received by the Competent Authority from the writ petitioner/appellant. On the other hand, on 12th March, 1999, the writ petitioners filed an application for compensation claiming Rs. 50,45,53,000/-. In course of the hearing on the question of compensation, the workers’ union and the Official Liquidator sought to intervene.
4.1. Ultimately, challenging the validity of the Notification under Section 3A(1), the acquisition and the vesting, the writ petitioner/appellant filed the present Writ Petition No. 1521KW) of 2001 in September, 2001. By an order dated 10th of December, 2001, the writ petition was allowed quashing the advertisement recording an undertaking that the writ petitioners will not challenge the public purpose. On 3rd April, 2002, the Division Bench granted an ad interim order of stay of the order dated 10th December, 2001 challenged in the appeal in MAT No 351 of 2002. On 10th February, 2003, the National Highways Authority of India (NHAI) made an application in the appeal permitting it to take possession. This application came up for hearing on 13th of February, 2003. However, no order was recorded in respect of this application. It may be pertinent to mention that the NHAI/Competent Authority had been insisting that though no order was recorded in the ordersheet in respect of the said application, yet the Court had made certain observations with regard to the taking of possession and determination of compensation by the Competent Authority. On 18th of February, 2003, the NHAI deposited Rs. 21.28,21,000/-with the Competent Authority. A letter dated
18th February, 2003 was placed before the Division Bench. It may be noted that the NHAI had been attempting to make out a case that the Division Bench was pleased to observe that since the compensation has been deposited with the Competent Authority, the NHAI may take possession of the land and the writ petitioners would make over possession of the land. Admittedly, however, no such order appears to have been recorded in the
ordersheet. On 19th of February, 2003, the Competent Authority issued the Possession Certificate and had also through a letter of even date recorded that the possession has since been assumed. On 27th of March, 2003, the appeal being MAT No. 351 of 2002 was finally disposed of by setting aside the judgment and order dated 10th of December, 2001 passed by the learned Single Judge remitting the writ petition. Thereupon on 11th of June, 2003, the writ petitioner made an application in the pending writ petition for an order of status quo in respect of the land in question restraining the respondents from parting with their possession. This application was rejected by an order dated 20th of June, 2003. It is against this order the present appeal MAT No. 1598 of 2003 arises.
Submissions:
5. In course of argument, Mr. Sen, Mr. Mitter and Mr. Roy had raised various points and had advanced their respective submissions to support their respective contentions. Each of them had relied on various decisions cited at the bar. Mr. Panja for the State and Mr. Pal for the Union of India adopted the submissions of Mr. Roy and Mr. Mitter. While Mr. P. D. Mukherjee, learned Counsel appearing on behalf of the Commissioner of Provident Fund, had submitted that the Provident Fund Authority has a claim over the amount receivable by the writ petitioners. We shall be referring to the various submissions made by the respective Counsel and the respective decisions cited by them at appropriate stage.
Points for consideration:
6. The main contentions on which the respective Counsel had based their submissions either in favour or against such point may be summarized thus; (1) The mis-description of the property sought to be acquired as detailed in the Notification contravenes the provisions of Section 3A(2) of the NH Act and thus vitiates the Notification on the basis of which the acquisition cannot be proceeded with and as such there could be no vesting and, therefore, the possession could not be resumed since on account of absence of brief description the owner was prevented from raising a meaningful objection: (2) the possession of the land could not be taken in view of the provisions contained in Sections 3E, G and H, particularly, on the face of the order dated
3rd of April, 2002 passed by the Division Bench in MAT No. 351 of 2002, particularly, without complying with Section 3E(2).
6.1. On these two broad points, the parties went on. In support, both the learned Counsel had raised some ancillary points, which are sub-division of these two broad points.
Point No. 1:
The petitioner’s contention:
7. Section 3A(2) NH Act requires giving of a brief description of the land. Mr. Sen contends that when the statute prescribes a particular mode of action, the same has to be adhered to and an infraction thereto would make the action void and a nullity. Section 3A(2) requires giving of brief description, which is something different from the provisions contained in the Land Acquisition Act, 1894 or any other Act relating to acquisition of land. Since the requirement of giving brief description is peculiar and special to the NH Act, the same cannot be overlooked. Nothing expressed in the statute is redundant. It has to be given its due meaning and has to be understood on the golden principle of interpretation. According to him, in the present case, the lands described in the Notification gave the plot numbers of each land in the respective Mouza. Such lands were acquired cither as a whole or in part. So far as the petitioners are concerned, some of the lands were acquired as a whole and some were acquired in part. There was no description as to which part was being acquired. Unless the part of the land sought to be acquired was properly described, the petitioners were unable to understand the extent of acquisition and raise objection to the use of the land for the purpose of acquisition as contemplated in Section 3C.
Respondents’ Contention:
8. It is pointed out by Mr. Mitter and Mr. Roy that no one else had raised any objection to the acquisition before any Court in any proceedings. The possession of all the lands including those of the petitioners had since been taken. But because of the interim order granted from time to time in various proceedings, the work in the stretch of the lands belonging to the petitioners was being hampered. Whereas the entire other stretch of the proposed national highway is being constructed and almost nearing completion. Any obstruction would put the NHAI to enormous loss on account of certain terms of the contract on the basis of which it would be incurring huge loss by way of compensation
i.e. @ Rs. 4 lakhs per day, payable to its contractors in case the construction was not complete within the stipulated time.
The confine:
9. In these circumstances, we propose to confine the decision in this case only with regard to the lands of the petitioners. This decision will not affect the Notification under Section 3A already issued or its consequential effects in respect of the lands other than those belonging to the petitioners. This decision shall remain confined only to the petitioners without affecting the Notification issued under Section 3A and the consequent acquisition and vesting and the taking of possession and dealing with the same by the NHAI or the Competent Authority etc. or otherwise.
Contentions elaborated:
10. Mr. Mitter in his contention had raised certain issues viz., (1) that the petitioners cannot challenge the Notification after having submitted their claim for compensation. The submission of the claim operates as an estoppel, waiver and acquiescence as against the petitioners to challenge the validity of the Notification; (2) by reason of submission of the claim for compensation and in course of which the inspection of the Plan on behalf of the petitioners or by its officer had the effect of enabling the petitioners to raise meaningful objection and the defect, assuming but not admitting, even if there was any, would no more affect the validity of the Notification so far as the petitioners were concerned and in any event the petitioners were not entitled to raise any objection at this stage; (3) the raising of objection is a right prescribed by the statute prescribing certain period of limitation on the expiry whereof the right lapses and no objection can be raised thereafter; (4) the brief description as required under Section 3A(2) had since been satisfied by reason of the description of the land given in the Notification, describing the plot numbers and the other particulars for identifying each of the land, which was, in fact, intelligible to the owners of the lands; (5) before issuing the Notification, a Plan was prepared and it was open to inspection at the office of the Competent Authority and anyone who would have intended to inspect could have the opportunity to inspect the same. As such the absence of brief description could at best be held to be an irregularity without affecting the validity of the Notification but not an illegality affecting the validity. He also relied on various decisions to contend that even in cases where descriptions were not being properly given, the reference to the availability of the Plan for inspection in the office of the acquiring authority would justify the requirement of brief description; (6) the petitioners having raised no objection and having lodged their claim for compensation, the report under Section 3D having been submitted and a declaration under Section 3D having been published without any objection from the petitioners, the land having stood vested in the State on the issue of such Notification under Section 3D by the Competent Authority, there is no scope of divesting of the land once vested; (7) in view of Section 3F, the Competent Authority is entitled to take possession even without complying with Section 3E and as such there was nothing to prevent the NHAI on the Competent Authority to take possession; (8) the possession having been taken, there is no justification in the continuing of the interim order which will affect seriously and prejudicially the interest of the public and would be a setback in the economic development of the country in the face of the globalization of the economy; and (9) since there was no embargo in taking of possession, there was no scope of dispute with regard to the authority of the NHAI or the Competent Authority to take possession of the land.
10.1. While supporting the points taken by Mr. Mitter, Mr. Roy elaborated the same and attempted to throw some new light thereon and had contended that the Apex Court had been insisting in such a case that it is only the interest of the public and the nation which is to be kept in mind and the Court should not interfere with the Notification on account of any technicalities or otherwise since the right of objection is only with regard to the use of the land for the purpose, a very limited scope of objection. That there was no dispute with regard to the purpose, is an admitted proposition as has been pointed out by him from the materials placed before us and that the only right that is available, is with regard to the receipt of compensation and nothing else. Therefore, in this case, as was held in the decision in Ramniklal N. Bhutta & Anr. vs. State of Maharashtra & Ors., , even if there is any infraction, the same can be compensated by adequate compensation but the acquisition should not be interfered with.
Reply for the petitioner:
11. Mr. Sen in reply had raised certain additional issues on the ground that at one point of time the Counsel for the Competent Authority and the State had agreed that there was defect in the Notification for which after a thorough discussion, it was decided that a fresh notification would be issued and accordingly a letter was so addressed but ultimately on appeal this decision was set aside. Mr. Mitter and ,Mr. Roy were also given opportunity to raise their contention on this question and Mr. Mitter pointed out that there were some attempts to issue a fresh notification but that was without the consent of the NHAI, who was not represented when such a stand was taken.
11.1. But we cannot go into this question. Since the order was quashed and the writ petition had revived, we are to look into the writ petition afresh. We cannot re-open the question, which had since reached finality with the decision of the Appeal Court.
Brief description: Meaning of: Impact:
12. Admittedly, the scope of objection available under Section 3C is limited. NH Act has given a restricted right of objection. Under Section 3C(1) the scope of objection is confined only to the use of the land for the purpose for which the land is acquired. Section 3D(1) requires the Competent Authority to consider this objection and decide the same and come to the conclusion as to whether the land is required for the purpose or not. Such decision, in our view, is final, inasmuch as it is dependent simply on the Site Plan prepared by the NHAI showing the requirement of the area of the land for different purpose for which the lands are being acquired. Therefore, the scope of objection being limited, the brief description of the land is thought of necessity by the legislature so as to enable the owner to raise a meaningful objection. This purpose can be satisfied either by annexing part of the relevant Plan, showing the existence of the respective plots of lands as shown in the respective Land Revenue Records, particularly, the Survey Maps currently available or by indicating that the part or whole of the land is within the Plan for construction of the National Highway available at the office of the NHAI or the Competent Authority for inspection and the owner is entitled to inspect the same on the days and time mentioned in the notice or Notification on requisition or request or on appointed date and time, as the case may be. Whether the land is required in whole or in part can be ascertained only when the Map or Plan is made available for inspection by the owner. In fact, it is not possible for the owner to raise a meaningful objection as to which part of the land is required for the purpose of construction of the National Highway or the whole of it, unless the owner is able to consult the Plan.
12.1. Other Acts dealing with acquisition of land, particularly, Act No. 1 of 1894, do not require giving of brief description of the land. Even then the Apex Court had read it in those Acts. The purpose was held to be served if there was an indication in the notice that the Map or Plan was available for inspection in the office of the Collector. NH Act stands on a different footing from all other legislations dealing with acquisition of land to the extent of the requirement of giving description of the land, which may be brief. The Act itself seems to be a departure in this regard from all other Acts already operating in the field, wherein the requirement of giving brief description of the land is absent, but is being read by the Courts in order to enable the owner to raise meaningful objection. A statute when uses a particular expression, the same cannot be held to be otiose or redundant. Every word in the statute has to be given its due meaning. The golden rule of interpretation is to give simple grammatical meaning of the expression used in the statute.
12.2. When the legislature make a departure in the normal expression used in a statute as ordinarily used in statute similarly situated and operating in the same or similar fields, it is to be presumed that the legislature had made the departure consciously and it has imposed greater precaution and an additional burden to protect the interest of those whose lands are acquired, conferring additional liability on the acquiring authority.
12.3. If we go on reading this particular statute, it appears to us that the requirement of giving brief description is a necessity. It cannot be overlooked. Whether the land is necessary for the purpose as a whole or in part has to be related to or reconciled with the Plan prepared, showing the details of the plots as to whether as a whole or in part or to what extent the same is falling within the line drawn in the Plan or is outside the Plan and the utility for which it would be used for the purpose of construction of the National Highway can be ascertained. In our view, the project being extensively large, it is just not possible to furnish copies of Plan to each of the owner. At the same time, it is just not possible to proceed to determine the necessity of acquisition of a particular plot of land without preparation of a proper plan indicating the necessity and purpose for which such land is to be utilized. When such a Plan is drawn and prepared and the land required for such purpose is proposed to be acquired, it is incumbent on the acquiring authority to indicate in the Notification itself that the Plan or Map is available in the office of the NHAI or the Competent Authority or with such other officer as may be indicated and are available for inspection on the appointed date and time mentioned in the notice or it may prepare a schedule for inspection for people of different areas on different dates or by appointment, as the case may be, which is, in our view, would satisfy the requirement of brief description which is a special and particular mandatory requirement provided in the Act itself.
Absence of objection: Impact:
13. The next question is whether the absence of any objection within the time stipulated would non-suit the petitioners. Section 3C(1) requires submission of objection within the time stipulated viz., 21 days from publication of Notification under Section 3A(1). In fact, if no objection is raised within the said time, the right to object would definitely lapse. But, at the same time, when the absence of a particular action, which is required to be taken on the basis of the statute, is not taken, then it goes to the root of the exercise of jurisdiction and the legality or validity of the notification. The objection raised within the time or outside time is then irrelevant. Whenever the question of validity is challenged, the right to do so subsists until the parties have accepted, by its conduct, the acquisition without any objection or by reason of its conduct is precluded from challenging the validity or on the principle of estoppel, waiver and acquiescence.
13.1. Now let us examine whether the petitioners can be said to have been prevented or precluded by its conduct or on the principle of estoppel, waiver of acquiescence from challenging the validity. Admittedly, the petitioners did not raise any objection within time. But that would not preclude the petitioners from raising the objection with regard to the validity when the question of validity goes to the root of the jurisdiction. As observed earlier, the validity goes to the root and as such it is open to the petitioner to challenge it until the question of conduct precluding him from challenging the validity is established. On the other hand, it had submitted a claim for compensation. Submission of claim for compensation does not operate as waiver, acquiescence or estoppel in challenging the validity of the notification. In case the claim for compensation is not submitted and ultimately the challenge falls and the period for claiming compensation having been over, the petitioner would be prejudiced in his right to claim compensation. Therefore, submission of claim for compensation in no way operate as estoppel, waiver or acquiescence by way of conduct of the petitioner to estop him from challenging the validity, which is otherwise illegal or invalid.
13.2. It is alleged that the Plan was inspected before submission of the claim for compensation, therefore, the petitioner had understood the area of the land sought to be acquired and as such he cannot claim that the petitioner was unable to understand or raise a meaningful objection. It is not the question of the petitioner’s inspection of the Plan subsequently. It is a question of validity of the Notification issued. It is a question whether the provisions of law have been properly complied with. When the statute prescribes a particular manner in which an action is to be taken, such action is to be taken only in that manner and no other. Therefore, when there is any infraction of such provision, the same would go to the root and would make the action illegal or invalid. No manner of acquiescence or waiver would preclude the petitioner from challenging the same until by his conduct he is precluded from challenging it, namely, by reason of acceptance of compensation after which he cannot raise the question of the illegality or validity. There may be various factors, which have to be weighed with having regard to the facts and circumstances of each for finding out as to whether a person is estopped or has waived or acquiesced or is precluded from challenging it.
13.3. The basic requirement of waiver is that it must be an intentional act with knowledge. When one is fully informed of his right and with full of such knowledge, he intentionally abandons it, then he waives his right. Estoppel operates against a person when it is shown that the existence of an act or a certain set of things represented by him or his authorized agent by words or conduct to another or to someone on his behalf with the intention that such other person should act in good faith, upon the representation and that the action, in fact, is accordingly taken by such person so as to alter his own previous position. The essence of a waiver is an estoppel within the meaning of Section 115 of the Indian Evidence Act, 1872. Where there is no estoppel, there is no waiver. In order to constitute waiver, there must be voluntary and intentional rolinquishment of a known right. Estoppel and waiver are questions of conduct and must necessarily be determined on facts of each case. When the validity goes to the root of the jurisdiction, then such a right can be waived only when by conduct a claimant makes clear that he has relinquished his known right intentionally. It was so held in Municipal Corporation of Greater Bombay vs. Hakim Wadi Tenants’ Association, 1988(1) SCJ 78. If a person does not accept the compensation awarded, there is no question of waiving his objection. In a case under Section 18 of the Land Acquisition Act, 1894 (LA Act), this Court in Manik Chand Mehto vs. Corporation of Calcutta, 66 IC 500: ILR 48 Calcutta 916, had held that making of an application under Section 18 of the LA Act without withdrawing or receiving the compensation awarded would not constitute waiver of the claimant’s right to raise objection to the validity of the acquisition proceedings.
13.4. In the decision in Sanyojan Co-op. Housing Society Ltd. vs. Surajben, , it was held that submission of claim for compensation would not preclude a person from challenging the validity of the notification or participation in such proceeding will not estop a person in this regard. It would not operate as estoppel, waiver or acquiescence on the part of the claimant to challenge the validity of the notification. Had it boon a case where award has been published and the compensation is accepted or aggrieved by the award, a reference has been made before challenging the validity, in that case, it would have been a case precluding the claimant from challenging the validity of the notification, which is not a case here.
13.5. In the present case, though the petitioner had submitted his claim but before he received the compensation, he had challenged the validity of the notice. Therefore, in this case having regard to the facts and circumstances of the case, we do not find that by his conduct the petitioner was estopped from challenging the validity of the Notification. That apart, he had also explained why the challenge could not be thrown earlier. The Company is registered in UK and it is pointed out that the petitioner was in UK and that there were certain difficulties with regard to the management of the Company. There were certain proceedings continuing during which the petitioner was unable to take any steps and the persons authorized to manage the Company during such period would not bind the petitioner, if no step was taken by them, Until the orders relating to the management of the Company had created an opportunity to the petitioner to step into the affairs of the management, he could not take the step, which in our view justifiably explained the delay and the conduct; this, in our view, would not preclude the petitioner from challenging the validity of the writ petition. Therefore, the writ petitioner is very much entitled to challenge the legality or validity of the Notification.
13.6. In the present case with which we are now dealing the award determining compensation has not become final as observed earlier. That apart, the question is not sealed because of the delay, as we have observed earlier. NH Act makes a departure from the ordinary principle of law in which vesting coincides with the taking of possession after payment of compensation (vide 1894 Act etc.) The law provides for a drastic measure for drastic necessity. Therefore, when the authority is clothed with drastic powers, it has to exercise the same strictly according to the power conferred upon it. It cannot exceed the guideline laid down in the statute. A drastic power when exercised more drastically than envisaged in the statute the right of the persons affected are to be protected by the Court. When such party comes before the Court to seek protection, the Court cannot be an idle onlooker and overlook all infirmities in the action and infraction of law and infringement of the rights of the petitioner. But at the same time, it has to strike a balance and that can be done by cutting legal remedies to suit the need in an appropriate case in an appropriate manner. One principle is by shifting the date of notification and the other by permitting additional compensation.
Scope of objection under Section 3C(1):
14. But the fact remains that under Section 3C(1) the objection is confined to the scope as indicated above. Therefore, it is only the objection with regard to the utility of the land for the purpose, which can he gone into. If this is shown and now it is being shown that these lands are necessary for the purpose having been included within the Plan, therefore, it would only by a technicality at this stage to set aside the Notification. Even if the Notification is set aside, it would not preclude the authority to issue a fresh Notification and undergo the entire process of acquisition once again; it would be repetition of an empty formality. The only benefit the petitioners can get is shifting of the date of Notification and thus an enhanced rate of compensation and nothing more. The ultimate relief the petitioners can get is only the compensation, nothing more and nothing less. Even if the Notification is set aside and if a fresh Notification is issued, the petitioners would be entitled only to claim a higher rate of valuation on the date of the issue of the fresh Notification. By reason of passage of time, it seems that the valuation might have been increased. In case a fresh Notification was issued immediately after the first order was passed in the writ petition, in that event, the matter would have been easy and there would not have been delay and the construction must have progressed and unnecessary time, energy and money would not have been spent over the litigation. The only prejudice the NHAI would have suffered was a little higher amount of compensation. By reason of passage of time and the pendency of this writ petition and the other proceedings had, in fact, delayed the process and had enhanced the possibility of increasing the cost of construction. Be that as it may, these are concerns for the NHAI.
Point No. 2:
Taking of possession: Whether valid:
15. By reason of the report and the declaration under Section 3D, the land has definitely vested. Once vested it cannot be divested. But the vesting is dependent on the issue of a valid notification under Section 3A. If the notification is illegal or invalid, the vesting is also illegal or invalid. If the vesting is illegal or invalid, all subsequent steps would be illegal or invalid. Therefore, Section 3F would not be of any help for taking possession. On the other hand, the possession could be taken only after compliance of Section 3E. In this case, it is alleged that the compensation has been determined under Section 3G and the amount had been deposited under Section 3H(1) and thereafter possession had been taken under Section 3E(1). It is further alleged that this was done on the basis of an observation made by the Division Bench in the order dated 13th February, 2003.
15.1. We are unable to accept this proposition. The order dated 3rd April, 2002 (page 440 PB Vol. II) clearly indicates that qua the petitioner the compensation shall not be finally determined. That order is staring on the face of the Competent Authority. This order has not been modified. If the compensation cannot be determined finally, the deposit thereof would not entitle the Competent Authority or the NHAI to take possession. Such a course of action, when the respondents are precluded from finally determining the compensation, would not entitle them to take resort to Section 3F and to take possession in terms of Section 3E read with Section 3G and
H(1).
Order vis-a-vis observation of Court:
16. An observation made in Court is not an order. An order is to be recorded in the ordersheet. The High Court is a Court of records. Unless an order is recorded in the ordersheet, nothing can be presumed to be an order. Therefore, the purported reliance on the observation is wholly misplaced. Therefore, on the basis of the alleged deposit, the Competent Authority was not entitled to take possession. When the taking of possession is illegal and invalid, the Competent Authority cannot proceed with the possession. The taking of possession is invasion on the right of the owner. Such possession definitely requires to be compensated. In any event such possession would not permit the Competent Authority or the NHAI to continue its possession and carry on the construction.
16.1. The order dated 3rd April, 2002 did not deal with the question of possession but had definitely restrained the respondents from determining the compensation qua the petitioner finally. When the respondents are so restrained by an order of the Court, the same cannot be made nugatory until it is recalled or vacated or until a fresh order is passed by reason whereof such order could be treated to be withdrawn or recalled or modified by implication. Any observation, even if made in Court, the same would not have the effect of rendering the order passed earlier nugatory or invalid or would have the effect of recalling the same. The Court cannot presume anything unless it is borne on record. An observation, if made by the Court, cannot have the effect of an order of the Court until it its borne out from the formal expression recorded in the order.
Possession or entry: Validity and legality:
17. The scheme of the Act postulates that an amount determined by an order of the Competent Authority is to be paid for the land acquired in terms of Section 3G(1). The other Sub-sections of Section 3G prescribe the mode of determining the compensation and its reference to arbitration and the mode in which the arbitrator has to proceed. The possession of the land can be taken under Section 3E only after the compensation determined under section 3G is deposited with the Competent Authority under Section 3H(1). The process for taking possession is prescribed in Section 3E. The provisions for taking possession have been laid down clearly. The possession can be taken only after the amount determined under Section 3G is deposited under Section 3H(1). However, such possession can be taken only in the manner prescribed in Section 3E.
17.1. Mr. Mitter had drawn our attention to the arrangement of the scheme. Taking of possession and right to enter into the land vested follow the vesting but precede the determination of compensation and its deposit. Therefore, it is open to the Competent Authority to take possession even without deposit, particularly, in view of Section 3F, which empowers the Competent Authority to enter into the land after it is vested. But from the record, it does not appear that the Competent Authority had
made out any such case that it had entered into the land in terms of Section 3F. On the other hand, it had insisted that by reason of the order dated 13th of February, 2003 by the Division Bench, it had taken possession after the compensation was determined under Section 3G and deposited under Section 3H(1). Therefore, we may not go into the question of the arrangement of the provisions as indicated therein.
17.2. But then the arrangement of the scheme will not be relevant for our present purpose since it is not the case of the Competent Authority that it had exercised power of possession in the form of entry into the land under Section 3F. Section 3F speaks of entry but not of taking possession. Entry and possession arc two different things and connote two different consequences. Therefore, Section 3F and Section 3E postulate two different positions. The Competent Authority clearly claims to have taken possession in exercise of the power conferred upon it under Section 3E on the basis of the observation made by the Division Bench in the order dated
13th of February, 2003. It had never claimed to have exercised its power conferred upon it under Section 3F. Therefore, until the compensation could be finally determined, there could not be any question of deposit and taking possession of the land.
17.3. It appears from the documents at pages 560-563 (PB Vol. 2) that the Competent Authority had taken possession of the land on the basis of the observation made by the Division Bench in its order dated
13th of February, 2003 after determining the compensation and depositing the same in terms of Sections 3G and 3H(1) respectively and a notice dated
18th of February, 2003 was issued requiring the petitioners to deliver possession. From the letter dated
19th February, 2003, it appears that the possession was assumed in terms of the observation made by the Division Bench presided over by Hon’ble the Chief Justice on 13th February, 2003 and simultaneously handed over to the NHAI and a Possession Certificate in original was enclosed. The Possession Certificate at page 563 (PB Vol.2) shows that the possession was taken pursuant to the observation made by the Division Bench on
13th of February, 2003. It records that the General Manager of the petitioners refused to hand over possession. If the possession was refused to be handed over, it is not known how the possession was taken on 19th of February, 2003. Nothing is mentioned in the Possession Certificate as to from whom and how the possession was taken. It further records that the possession was taken over by NHAI subject to removal of all encumbrances and the observation marked “A”.
17.4. Section 3E empowering the Competent Authority to take possession prescribes that the possession is to be surrendered or delivered by the person upon whom notice in writing is issued by the Competent Authority under Section 3E(1) within 60 days of service of notice. In this case as it appears from the Possession Certificate that the possession was neither surrendered nor delivered, whereas possession was taken one day after the service of the notice. Whereas Sub-section (2) prescribes that if any person refuses or fails to comply with any notice under Sub-section (1), the Competent Authority has to apply to the Commissioner of Police if the area falls within the metropolitan area or in other cases to the Collector of the District; and upon such application the Commissioner or the Collector would enforce surrender of the land to the Competent Authority or to the person duly authorized by it. In the present case, admittedly, there was a refusal to deliver possession. The possession, therefore, could be taken only after the compliance of Sub-section (2) of Section 3E. It is not the case of the respondents that the possession was taken in compliance of Section 3E(2).
17.5. In this case there are three infractions-one that the notice did not allow the full time provided in the section itself, namely, the 60 days period; secondly that the possession was taken in violation of Sub-section (2); and the third infraction is that it was taken possession despite the order dated 3rd April, 2002 passed by the Division Bench of this Court.
17.6. It appears that the possession was taken on the same day when the officer of the petitioners had refused to deliver possession. Such refusal to deliver possession does not entitle the Competent Authority to take possession. The course of action for taking possession is prescribed in the Act itself. The action has to be taken as prescribed in the Act and not otherwise. It cannot take possession without the procedure prescribed.
The decisions cited:
18. In support of his contention Mr. Mitter had relied on the decision in Roma Bose & Ors. vs. Union of India & Ors., . In the said case, it was held that no objection was raised by the appellant before the Collector due to vagueness of the public purpose owing to the non-availability of master plan and the scheme for inspection by them. Therefore, no effective objection could be made. The learned Court therein was pleased to hold that the public purpose mentioned in the notification under challenge in the said decision was not vague and, therefore, the acquisition proceeding could not be held to be bad on that score. The other point that was decided in the said case was that the acquisition proceeding was challenged after one year, the delay was held to be fatal. It was further held that after a declaration has been published under Section 6 of the Land Acquisition Act, the Court cannot go into the question whether the need was genuine or not or the action taken by the Government was fraudulent one. We do not think that this decision can help us for our present purpose. In this case, the purpose was not at all under challenge. It was not a case of fraudulent or mala fide action. It is simply a case of infringement of Section 3A(2). The objection that could be raised was not related to the purpose but related to the use of the particular land for the purpose. We have already held that this can be ascertained only if the map or plan is available and which was to be mentioned in the notice itself.
18.1. Mr. Mitter had relied on the decision is State of Rajasthan & Ors. vs. D. R. Laxmi & Ors., . In the said case, the award was passed in March, 1978 and the reference was sought for in March, 1978 whereas writ petition was filed in September, 1978 challenging the notification under Section 4(1) and the declaration under Section 6. In this background Mr. Mitter contended that the land having vested with the publication of the award free from all encumbrances, it cannot be divested. In the said decision, reference was made to
Senjeevanagar Medical & Health Employees’ Co-operative Society vs. Mohd. Abdul Wahab, . The said decision again referred to the decision in Satendra Prasad Jain vs. State of U. P., . It is a settled proposition of law that once, possession is taken and the land is vested in the Government, title to the land so vested in the State is subject only to determination of compensation and to pay the same to the owner. The only power of the Government to withdraw from the vesting is under Section 48(1) of the Land Acquisition Act, 1894 before possession is taken. Under the Land Acquisition Act, vesting takes place with the declaration of the award and taking of possession in terms of Section 16 or upon payment of 80% compensation under Section 17(4) of the 1894 Act; whereas in the NH Act 1956, effects vesting with the issue of the declaration under Section 3D. But, according to the scheme of the Act, the vesting does not empower the Competent Authority to take possession. It only empowers an entry for the purposes mentioned in Section 3F. At the same time, under Section 3B with the issue of the notification, the Competent Authority is entitled to enter for the purposes enumerated in Clauses (a) to (f) before vesting. It is admitted position that once vested, it cannot be divested. But if the vesting takes place on the basis of a notification held to be illegal and if possession is taken pursuant to such vesting and that too in infraction of Section 3E without complying with Section 3G and Section 3H(1), then definitely the situation becomes little anomalous. The question then would be that of an illegality and not merely an irregularity. Even if it is an irregularity, it is irregularity, which operates in the field of illegality. Therefore, after the issue of the declaration under Section 3D, if such illegality occurs, whether the vesting can be said to be valid or whether the vesting can take effect is a question, which we need not dilate upon. But the fact remains that the right of the petitioners have been invaded pursuant to an action on the part of the respondents, which discloses infraction and infringement of the law. This decision also referred to the question of delay relied upon Municipal Corpn. of Greater Bombay vs. Industrial Development & Investment Co. (P) Ltd., .
18.2. H. W. R. Wade in Administrative Law (7th Edn.) at pp. 342-43 observed that; The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may hypothetically a nullity, but the Court may refuse to quash it because of the plaintiffs lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the
‘Void’ order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another. A common case whore an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies if produces that result.” As observed earlier, this principle will not affect the present one since the matter did not become final. In this decision, the question of shifting the date of notification was also considered having regard to the decision in Ujjain Vikas Pradhikaran vs. Raj Kumar Jokri, . Though on principle, the shifting of the date was not disagreed, but since the award determining the compensation had attained finality, the Court did not interfere.
18.3. Mr. Mitter had also relied on an unreported decision of this Court by a learned Single Judge in Pranab Kumar Chatterjee & Ors. vs. Union of India & Ors., W. P. No. 3346(W) of 1999 disposed of on 19th of March, 1999 by His Lordship the Hon’ble Mr. Justice Samaresh
Banerjee. In the said decision, it was held that the public interest will certainly overweigh private interest of the writ petitioners and the writ petitioners will be liable to be compensated for such acquisition. It was further held that some of the petitioner did not file objection to the notification proposing acquisition of the land and that claims for compensation in respect of such lands were filed and therefore the writ petition could not be maintained. On facts the case seems to be distinguishable though it was concerned writ the question of vesting under Section 3D(1) NH Act. On appeal, this decision was affirmed by the Division Bench by a decision dated December 22, 1999 in MAT No. 1362 of 1999 disposed of by the Hon’ble Mr. Satyabrata Sinha, J., as His Lordship then was, and the Hon’ble Mr. M. H. Ansari, J. The said decision proceeded on the ground that the objection was with regard to the mala fides attributed to the authorities as object of the acquisition and that no particulars of such mala fide was furnished in the writ petition. Therefore, this decision does not help us in the present context where it is not a case dealing with mala fides with regard to the object of the acquisition. On the other hand, it proposed compensation for acquisition as remedy for sufferance, if any, to the aggrieved owner.
18.4. Mr. Roy in support of his contention relied on Urban Improvement Trust, Udaipur vs. Bheru Lai & Ors., . In the said decision, delay of two years was held to be fatal relying on Reliance Petroleum Ltd. vs. Zaver Chand Popatlal Sumaria, and Hari Singh & Ors. vs. State of U. P., . The said decisions cannot be attracted in the present case in view of the distinguishing feature as discussed above, particularly, that this case there are not only an infringement with regard to the mandatory necessity of giving brief description in the notification, but also on the ground of taking possession, which we will be discussing latter, and which took place after the writ petition was moved and that a drastic power conferred upon the authority has been exercised most drastically than envisaged in the act itself. Therefore, the petitioner cannot be rendered remediless altogether.
18.5. Mr. Sen, on the other hand, had relied on the decision in Ujjain Vikas Pradhikaran vs. RajKumar Johri & Ors., . In the said decision, the High Court had found that the requirements of the statute were not complied with. However, the High Court did not find any mala fide in the action taken. It was found that if the infirmities in the requirement of the statute were raised in the earlier petition filed 12 years back, the defect could have been rectified despite this period of delay the Court having regard to the essential facts and necessity had only allowed shifting of the date of notification for higher compensation.
Conclusion:
19. In these circumstances, we find that the Notification is suffering from an infirmity i.e., lacking brief description of the land as required under Section 3A(2) and that the possession, was taken illegally and the determination of compensation has been done in violation of the restriction imposed on them by reason of the expressed order passed by the Division Bench, namely, the order,
dated 3rd April, 2002 in MAT No. 351 of 2002. But we must appreciate that the construction of the National Highway is of great importance. The other portion of the National Highway is being progressed and is nearing completion. Because of this litigation, this part of the construction is forestalled which is creating difficulty in the completion of the National Highway. If the Notification is declared illegal at this stage, in that event, it will create more difficulties and problems than solutions. At the same time, there had been an invasion on the petitioner right. However, we had already observed that the petitioners’ entitlement is to compensation. The only benefit they can derive is a higher amount of compensation or valuation since such valuation is to be made as on the date of the Notification, which could have been shifted forward if a fresh Notification is issued. In view of the decision in Ramniklal N. Bhutta, 1997(1) SCO 134(supra), such a case can be compensated by payment of compensation or by shifting the date as held in Ujjain Vikas Pradkikaran, (supra). At the same time, we have also found that the possession could not have been taken by the respondents. By reasons of taking possession without being supported by law, particularly, on the face of the restriction imposed by the Court in its order dated 3rd April, 2002 passed in MAT No. 351 of 2002, the petitioners suffered loss of possession for which the appellant/petitioner can claim compensation. This also can be done by a direction for increasing the compensation by certain percentage and at the same time it can also be compensated by allowing interest on the compensation payable. In view of the situation that it is the nation, which will suffer, we do not propose to set aside or quash the Notification, though in our view, it appears to be illegal and though in our view, the taking of possession is illegal and the petitioners had been deprived of their possession illegally, yet we do not like to restore the possession to the petitioners and unnecessarily direct the respondents to undergo the entire process of taking the possession once again. This we do in the National interest and in the interest of the economy and the prospect of globalization of our country. In our view, the claim of the writ petitioners can be compensated and sufficiently by compensation.
Order:
20. We, therefore, direct that the compensation already determined be enhanced by 30% on account of the illegality in the Notification and the deprivation of possession. The Notification issued shall be deemed to be valid from the date of its issue with all its intent, purpose and object. We, however, keep the claim for interest open to be decided, in accordance with law, by the appropriate authority, if claimed and if occasion so arises. However, such determination and deposit shall be subject to Section 3G(5) for reference to arbitrator if occasion so arises and the parties so choose to exercise such option.
20.1. This order is without prejudice to the rights of the respondents and free from all liabilities so far as the claim that might be lodged either by the Official Liquidator or the Provident Fund Authority. We make no observation with regard to the liability of the petitioners or the entitlement of the Official Liquidator or the Provident Fund Authority to recover its dues or otherwise, nor we express any opinion with regard to any orders passed by any authority or Court in any other proceeding or proceedings, as the case may be.
20.2. We make it clear further that this order will not affect or open up any of the claims or otherwise of any of the party. This order is exclusively confined to the appellant/petitioner in this case.
20.3. There will, however, be no order as to costs. All interim orders stand discharged and the respondents or the Competent Authority or the NHAI shall be free to proceed with the construction and commission of the National Highway. The additional amount is to be deposited with the Competent Authority in terms of this order within a period of one month from the date of this order. The writ petitioners shall be entitled to release of the amount in deposit and of the additional amount upon deposit, in accordance with law unless otherwise prohibited.
20.4. This appeal and this writ petition are thus disposed of.
21. Urgent xerox certified copy of this judgment be made available to the parties, if applied for, within 7 days.
Rajendra Nath Sinha, J.
22. I agree.