PETITIONER: STATE OF RAJASTHAN & ORS. Vs. RESPONDENT: D.R. LAXMI & ORS. DATE OF JUDGMENT: 12/09/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. FAIZAN UDDIN (J) G.B. PATTANAIK (J) ACT: HEADNOTE: JUDGMENT:
O R D E R
This appeal by special leave arises from the Division
Bench Judgment of the High Court of Rajasthan made on
September 2, 1985 in W.P. No.602/78. The admitted facts are
that the notification under Section 4(1) of the Land
Acquisition Act, 1894 (1 of 1894) (for short, the ‘Act’) was
published in the State Gazette on March 23, 1977 acquiring
31.28 acres of land for defence purpose. Enquiry under
Section 5-A was dispensed with in exercise of the power
under Section 17(4) of the Act and declaration under Section
6 was published on April 28, 1976. Possession was taken on
May 19, 1977. The award was passed under Section 18 was
sought and made in March 1978 to Civil Court for enhancement
of the compensation. In September 1978, the respondent filed
writ petition in the High Court seeking to quash the
notification under Section 4(1) and the declaration under
Section 6. The learned single Judge referred the matter to
the Division Bench. The Division Bench has held that the
acquired land is not an arable or waste land and, therefore,
the exercise of the power under Section 17(4) of the Act was
bad in law. Substance of the notification under Section
4(1) was not published in the locality. The notification
under Section 4(1) did not mention that it was a waste of
arable land. On these grounds, the learned Judges have
quashed the notification. Thus, this appeal by special
leave.
Shri Aruneshwar Gupta, learned counsel for the
appellants, has contended that the view of the High Court
is clearly erroneous. It is not necessary that notification
under Section 4(1) should contain a declaration that the
needed land is a waste or arable land. The finding that it
is neither nor arable land is not correct so long as the
land is capable of cultivation. If no cultivation was made
it would still be arable land. Therefore, the view that it
is neither waste nor arable land is not correct. It is
difficult to accept the entire six acres of land which is
now claimed by the respondents was within the compound wall
as found by the High Court. The view that substance of the
notification was not published in locality was not correct
in law without any further discussion on facts or legal
principles. Even the finding cannot be well supported by any
material on record; in law the High Court was wrong in
interfering under Article 226 of the Constitution. Shri
Rajinder Sachar, learned senior counsel for the respondents,
contended that since the substance of the notification under
Section 4(1) was not published which is mandatory, the
notification under Section 4(10, and declaration under
Section 6 could be challenged at any time even after the
award was made or possession was taken. Since publication of
the notification under Section 4(1) is the foundation for
taking further steps for the acquisition, procedural steps
required under the Act should be followed. The substance of
the notification under Section 4(1) was not published in
the locality. So all the proceedings which had subsequently
been taken place stand nullified. Therefore, the Court would
in an appropriate case grant the declaration including to
quash the award future steps. He also contended that it
would be difficult to accept that the lands are arable
lands, if not waste land. The finding that the land is
arable land is based on consideration of the material on
record. Therefore, it is not arable land. Further, it is
contended that the respondent had stated in the High Court
that he was prepared to accept the compensation provided
the date of notification under Section 4(1) was shifted to
four five years later to the actual date of the notification
under Section 4(1) published on March 23, 1977. He would
stand by the same offer and, therefore, it is not a case
warranting interference.
The questions, therefore are : (1) whether the
notification under Section 4(10 should contain the
declaration that the lands are waste or arable lands; (20
whether the exercise of the power under Section 17(4) was
vitiated by the finding that the lands were not capable of
cultivation being situated in urban area; (3) whether the
substance of the notification published under Section 4(1)
was not published in the locality; if it not complied with,
when the entire acquisition proceedings had become final,
whether the High Court was justified in exercising the power
under Article 226? It is not necessary to recapitulate all
the facts narrated above. Suffice it to state that after the
reference was made to the Civil Court, it passed an award
under Section 26 which was challenged by the State by filing
an appeal under Section 54 against the enhanced
compensation. Thereby, the respondents had accepted the
award. The State feeling aggrieved by the enhanced
compensation, filed an appeal in the High Court. The High
Court, by judgments dated May 5, 1982 and September 23,
1982, dismissed the appeals which became final. Thus, the
acquisition proceedings became final.
The question, therefore, as said above, is : whether
the High Court is justified in interfering with these
matters ? Section 4(10 of the Act does not required to
specify the nature of the land, i.e. whether it is arable or
waste land. The object of the publication of the
notification under Section 4(1) was that (1) the land is
needed for a public purpose or is likely to be needed;(2)
the officers of the State are authorised to enter upon the
land and carry on measurement etc; and (3) the
owner/interested person was put on notice that any
encumbrance hereafter would not bind State. Therefore,
Section 4(1) does not envisage specification of the nature
of the land, i.e. whether it is waste or arable land, when
the same was published. The view, therefore, of the High
Court that the notification under Section 4(1) should
contain a declaration of the nature of the land is clearly
erroneous.
Second question whether the land is waster or arable,
is a mixed question of facts and law. It depends upon the
facts in each case. In this case, it is seen that on their
own showing, the land of an extent of 6 acres belonging to
the respondents was sought to be acquired along with other
vast extent of land. It consists of open land as well
building and the servant quarters. The award of the Land
Acquisition Officer has been placed before us. The building
was not acquired for the public purpose but only servant
quarters came to be acquired. From this background, the
question arises : whether the land is arable land > This
question was considered by a Bench of three Judges in
Ishwarlal Girdharilal Joshi vs. State of Gujarat [(1968) 2
SCR 267]. After elaborate consideration of the various
judgments of the High Courts and dictionary meaning of the
words “arable” in that behalf, this Court has relied thus :
“There is no definition of the word
‘arable’ in the original Land
Acquisition Act. A local amendment
includes garden lands in the
expression. Now lands are of
different kinds : there is waste-
land desert-land, pasture-land,
meadow land, grass-land, wood-land,
marshy-land, hilly land, etc. and
arable land. The Oxford Dictionary
gives the meaning of ‘arable’ as
capable of being ploughed; fit for
tillage ; opposed to pasture-land
or wood land and gives the root as
arable is in Latin. The learned
Judges have unfortunately not given
sufficient attention to the kinds
of land and the contrast mentioned
with the meaning. Waste-land comes
from the Latin vastitas or vastus
(empty, buildings). It was always
usual to contrast vastus within
incultus (uncultivated) as in the
phrase ‘to lay waste’ (agri
vastate). A meadow or pasture-land
is pratum and arable is arvum and
Cicero spoke of prata et arva
(meadow and arable lands). Grass-
land is not meadow or pasture-land
and in Latin in known as campus as
for example the well-known Campus
Martius at Rome, where the comitia
(assembly of the Roman people) used
to meet. Woodlands is silvae,
nemora or saltus.”
This was considered also be the Constitution Bench in
Raja Anand Brahma Shah vs. The State of Uttar Pradesh & Ors.
[AIR 1967 SC 1801]. In that case, the acquired lands were
mineral lands for mining purpose. Therefore, the question
arose; whether they were arable lands ? On the facts of this
case, the Constitution Bench came to the conclusion that
since they were not arable lands, the exercise of the power
under Section 17(4) was not justified in law. In view of the
fact that the Act itself has considered as to when the land
could be considered to be arable land; as explained by this
Court, the interpretation put up in Ishwar Lal’s case is in
the correct perspective. The Court has power t consider the
question in that light. In considering the question whether
the land is arable or waste, dictionary meaning does not
help the Court to solve the problem. Pragmatic approach is
required to be adopted in considering the question on the
facts in each case. Though the lands in this case situated
in urban area, the Urban Land Ceiling Act itself recognises
existence of the agricultural lands within the urban
agglomeration and they are dealt with accordingly. When the
lands were capable of the raising crops, they remained to be
arable under Section 17(4) by the Government was not bad in
law. On facts, it is an arable land capable to cultivation.
It is quarter as part of a large area, including six areas
of respondent’s lands, it cannot be said that the ret of
the land is occupied by the buildings or is within the
compound though situated in urban area. The view of the
High Court, therefore, was clearly erroneous.
The question is : whether the absence of the
publication of the substance of the notification in locality
renders the entire proceedings void? We need not dilate
upon the question whether local publication of substance of
Section 4(1) notification is mandatory or directory. Since
this Court has consistently taken the view that compliance
of the requirement of the publication of the notification
under Section 4(1) in the Gazette as well as publication of
the substance of the notification in the locality now under
the Amended Act in the newspaper, is mandatory requirement.
As the facts are not in controversy, as mentioned in the
judgment of the High Court, the substance of the
notification was not published in the locality; we proceed
on the premise that second step, namely, publication of the
substance of the notification in the locality, was not
taken. The question then is : whether Section 4(1)
notification and Section 6 declaration are required to be
quashed ? In this regard, we have to consider the conduct of
the parties and the effect thereof. Under the scheme of the
Act, after the possession of the land was taken either under
Section 17(2) or Section 16, the land stands vested in State
free from all encumbrances. Thereafter, there is no
provision under the Act to divest the title which was
validly vested in the State. Under Section 48(1) before the
possession is taken, the State Government is empowered to
withdraw from the acquisition by its publication in the
Gazette. In this regard, a three-Judge Bench of this Court
has considered the question in Sanjeevanagar Medical &
Health Employees’ Co-operative Society v. Mohd. Abdul Wahab
& Ors. [(1996) 3 SCC 600] and held in paragraphs 12 thus :
“That apart, as facts disclose, the
award was made on 24.11.1980 and
the writ petition was filed on
9.8.1982. It is not in dispute that
compensation was deposited in the
Court of the Subordinate Judge. It
is asserted by the appellant
Society that possession of the land
was delivered to it and the land
had been divided and allotted to
its members for construction of
houses and that construction of
some houses had petition was filed.
It would be obvious that the
question of division of the
properties among its members and
allotment of the respective plots
to them would arise only after the
Land Acquisition Officer had taken
possession of the acquired land and
handed it over to appellant
Society. By operation of Section
16, the land stood vested in the
State free from all encumbrances.
In Satendra Prasad Jain v. State of
U.P.[(1993) 4 SCC 369], the
question arose: whether
notification under Section 4(1) and
the declaration under Section 6
gets lapsed if the award is not
made within two years as envisaged
under Section 11-A? A Bench of
three Judges had held that once
possession was taken and the land
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
owner. Divesting the title to the
land statutorily vested in the
Government and reverting the same
to the owner is not Section 48(1)
gives power to withdraw from
acquisition that too before
possession is taken. That question
did not arise in this case. The
property under acquisition having
been vested in the appellants, in
the absence of any power under the
act to have the title of appellants
divested except by exercise of the
power under Section 48(1), valid
title cannot be defeated. The
exercise of the power to quash the
notification under Section 4(1) and
the declaration under Section 6
would lead to incongruity.
Therefore, the High Court under
those circumstances should not have
interfered with the acquisition and
quashed the notification and
declaration under Section 4 and 6
respectively. Considered from
either perspective, we are of the
view that the High Court was wrong
in allowing the writ petition.
In Satinder Prasad Jain’s case, another Bench of three
Judges had held that though award under Section 11-A was not
within two years after the Amendment Act 68 of 1984 came
into force, the title having been vested in the State, the
notification under Section 4(1) and declaration under
Section 6 do not get lapsed and non-compliance of statutory
provisions does not have the effect of divesting the title
of the land vested in the Government free from
all encumbrances.
Recently, another Bench of this Court in Municipal
Corporation of Greater Bombay Vs. Industrial Development &
Investment C. (P) Ltd. [C.A. No. 282 of 1989] decided on
September 6, 1996 reexamined the entire case law and held
that once the land was vested in the State, the Court was
not justified in interfering with the notification published
under appropriate provisions of the Act. Delay in
challenging the notification was fatal and writ petition
entails with dismissal on grounds of latches. It is thus,
well settled law that when there is inordinate delay in
filing the writ petition and when all steps taken in the
acquisition proceedings have become final, the Court should
be loathe to quash the notifications. The High Court has, no
doubt, discretionary powers under Article 226 of the
Constitution to quash the notification under Section 4(1)
and declaration under Section 6. But it should be exercised
taking all relevant factors into pragmatic consideration.
When the award was passed and possession was taken, the
Court should not have exercised its power to quash the award
which is a material factor to be taken into consideration
before exercising the power under Article 226. The fact that
no third party were created in the case, is hardly a ground
for interference. The Division Bench of the High Court was
not right in interfering with the discretion exercised by
the learned single Judge dismissing the writ petition or the
ground of latches. Reliance was placed by Shri Sachar on
M.P. Housing Board v. Mohd. Shafi & Ors. [(1992) 2 SCC 168]
in particular paragraphs 8, wherein it was held that
compliance of the requirements is mandatory and non-
compliance thereof renders all subsequent proceedings
connected therewith unexceptionably illegal ; but the
question is what will be its effect. That was not the
question in that case, since no award had come to be passed
in Nutakki Sesharatanam v. Sub-Collector, L.A., Vijaywada
[(1992) 1 SCC 114] a two-Judge Bench of this Court had held
that if the requirements of Section 4 are not complied with,
all proceedings had become invalid and possession was
directed to be re-delivered to the appellant. We are of the
view that the ratio therein is not correctly laid down. The
question whether violation of the mandatory provisions
renders the result of the action as void or voidable has
been successfully considered in “Administrative Law” by
H.W.R. Wade [7th Edition] at page 342-43 thus :
“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 be hypothetically a
nullity, but the court may refuse
to quash it because of the
plaintiff’s 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
where 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 it
produces that result.”
The order or action, if ultra vires the power, it
becomes void and it does not confer any right. But the
action need not necessarily set at naught in all events.
Though the order may be void, if the party does not approach
the Court within reasonable time, which is always a question
of fact and have the order invalidated or acquiesced or
waived, the discretion of the Court has to be exercised in a
reasonable manner. When the discretion has been conferred on
the Court, the Court may in appropriate case decline to
grant the relief, even if it holds that the order was void.
The net result is that extraordinary jurisdiction of the
Court may not be exercised in such circumstances. It is seen
that the acquisition has become final and not only
possession had already been taken but reference was also
sought for ; the award of the Court under Section 26
enhancing the compensation was accepted. The order of the
appellate court had also become final. The order of the
appellate court had also become final. Under those
circumstances, the acquisition proceedings having become
final and the compensation determined also having become
final, the High Court was highly unjustified in interfering
with and in quashing the notification under Section 4 [1]
and declaration under Section 6.
It is true that the respondent had offered to accept
the compensation by shifting the date of the notification by
4 to 5 years from the date of the notification under Section
4(1). For this view, reliance was placed by Shri Sachar on
the judgment of this Court in Ujjain Vikas Pradhikaran v.
Raj Kumar Johri & Ors. [(1992) 1 SCC 328] where this Court
had allowed the shifting of the date for the determination
of the compensation. In that case since the award had not
been passed, this Court had given the direction but in this
case award determining the compensation has attained
finality. It is not a case to shift the date for the
determination of the compensation. Thus considered, we are
of the view that the High Court was not justified in
interfering with the notification and declaration under
Section 4(1) and 6.
The appeal is accordingly allowed. The judgment of the
High Court stands set aside. The writ petition stands
dismissed but, in the circumstances, without costs.