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Mohd. Swallehin & Others Petitioners v. Lt. Governor & Others S

Delhi High Court

Nov 23, 1976

Judgment

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Judgment Summary — Avadh Behari Rohatgi, J. (Oral)

Factual and Procedural Background

The Union of India issued a notification under S.4 of the Land Acquisition Act dated 9 April 1964 in respect of the petitioners' lands in Malikpur Chhawani, Delhi (total 194 bighas — 19 biswas, field nos. 351–359). The petitioners filed objections under S.5-A on 15 May 1964. Without hearing those objections, the Government issued a notification under S.6 on 30 November 1964.

Aggrieved, the petitioners filed a writ petition (C.W. No. 123 of 1968) on 30 January 1968 asserting that the S.6 notification could not be issued without hearing their S.5-A objections. The Government filed an application dated 9 December 1968 (styled under s.151 CPC) conceding non-compliance with S.5-A and suggesting quashing of acquisition proceedings subsequent to the S.4 notification while keeping the S.4 notification intact.

On 10 January 1969 V.S. Deshpande, J. ordered that the respondents could give a hearing to the petitioners under S.5-A without waiting for court orders and directed respondents to file a return within a week. On 11 January 1969 the Land Acquisition Collector issued a notice to the petitioners to appear on 14 January 1969. The Government contended the petitioners avoided personal service and that the notice was affixed at their last known residence on 11 January 1969.

No one appeared on 14 January 1969; the Collector submitted a report recommending dismissal of the objections. A corrigenda published in the Official Gazette Extraordinary Part IV on 15 January 1969 (dated 11 January 1969) deleted certain field numbers (354, 355, 357, 358 and 359 — 117 bighas — 3 biswas) from the S.6 notification of 30 November 1964. On 16 January 1969 the Government issued a fresh declaration under S.6 in respect of those deleted field numbers; that declaration was published in the Gazette on 18 January 1969.

The petitioners filed the present writ petition under Articles 226 and 227 on 22 February 1969 challenging the declaration dated 16 January 1969 (published 18 January 1969). They then moved to withdraw the earlier writ; CW 123 of 1968 was dismissed as withdrawn on 9 April 1969.

Legal Issues Presented

Whether the Government could issue a notice to hear the petitioners' S.5-A objections (dated 15 May 1964) without informing them that the Government had decided to cancel the earlier S.6 notification dated 30 November 1964.
Whether the cancellation of the S.6 notification dated 30 November 1964 could take effect from the earlier date shown on the corrigenda (11 January 1969) or only from the date of its publication in the Official Gazette (15 January 1969) — i.e., the temporal effect of a rescinding notification under S.21 of the General Clauses Act and the consequence for the lawfulness of the hearing on 14 January 1969 and the fresh S.6 declaration of 16 January 1969.

Arguments of the Parties

Government's Arguments (as recorded)

Mr. V.P. Nanda argued that the Government could cancel the S.6 notification of 30 November 1964 on 11 January 1969 and on that same day issue a notice to the petitioners requiring their appearance on 14 January 1969 to hear objections under S.5-A.
The Government relied on the corrigenda being dated 11 January 1969 (though published on 15 January 1969) to demonstrate that the S.6 notification stood cancelled on 11 January 1969; hence, between 11 January and 20 January 1969 it was open to the Government both to hear objections under S.5-A and to issue a fresh S.6 declaration.
It was also submitted that the petitioners were aware of the position by virtue of the Government's application of 9 December 1968 and the order of 10 January 1969, so separate communication of cancellation was unnecessary.

The opinion does not contain a detailed account of the petitioners' separate legal arguments beyond the factual assertions that they were unaware of the cancellation until Gazette publication and that their rights under S.5-A were infringed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of M.P v. Vishnu Pershad Sharma, AIR 1966 Supreme Court 1593	Shows that the operative date of an executive action effected through Gazette publication is the date of publication (i.e., effect is from publication date, not an earlier date shown on the instrument).	The court relied on this authority to hold that the cancellation of the S.6 notification could not have effect from 11 January 1969 (corrigenda date) but only from 15 January 1969, the date of Gazette publication; therefore the hearing on 14 January 1969 occurred before cancellation became known to petitioners.
Munshi Lal v. Delhi Administration (C.W. No. 433‑D of 1961; decision by Prakash Narain, J., 10 December 1970)	Concerned S.48 of the Act: an order once made under S.48 and communicated to the petitioner could not be revised by a successor Chief Commissioner (i.e., non‑revivability of a communicated order under those facts).	The court considered and distinguished this decision, holding it inapplicable to the present case because Munshi Lal turned on S.48 and communicated orders; the present question turns on the validity and temporal effect of cancellation of an S.6 declaration and the procedure for rescission under S.21 of the General Clauses Act.

Court's Reasoning and Analysis

The court proceeded by analysing chronology, statutory requirements, and the effect of Gazette publication:

Chronology and knowledge: The corrigenda cancelling parts of the S.6 declaration was dated 11 January 1969 but was first published in the Official Gazette on 15 January 1969. The Collector had fixed the hearing for 14 January 1969 — the day before publication. The petitioners therefore could not have known of any cancellation before Gazette publication.
Mandatory nature of S.5‑A: The objective and legislative purpose of S.5‑A is to give the landowner an opportunity to present objections to proposed acquisition. Compliance with S.5‑A is mandatory; a declaration under S.6 made without compliance with S.5‑A is invalid.
Effect of Gazette publication and S.21 General Clauses Act: The court held that while the Government has the power to rescind notifications (S.21 General Clauses Act supplies the power), that power cannot be exercised with retrospective effect by necessary implication. The effective date of a rescission is the date of Gazette publication, not an earlier dated instrument. The court expressly relied on State of M.P v. Vishnu Pershad Sharma for this proposition.
Application to the present facts: Because the cancellation only had effect from 15 January 1969 (date of Gazette publication), the Collector’s hearing on 14 January 1969 was held at a time when, in law and as a matter of public knowledge, the earlier S.6 declaration still subsisted. In those circumstances the hearing was a pretence — the petitioners were not informed that the S.6 declaration had been rescinded and thus had no real opportunity to know that they should appear for a S.5‑A hearing. The court characterised the proceedings as invalid and a denial of opportunity.
Application and order in earlier proceedings: The court rejected the Government’s contention that the December 9, 1968 application or the January 10, 1969 order relieved them of the obligation to follow the statutory procedure of rescission by Gazette publication under S.21. The application only conceded non‑compliance; nothing in it or the order indicated that cancellation and re‑declaration were contemplated or dispensed with the requisite publication procedure.
Resulting legal consequence: Because the S.5‑A hearing (14 January 1969) was not a lawful hearing in the eye of law, the subsequent fresh S.6 declaration of 16 January 1969 (published 18 January 1969) was invalid. The court concluded there was no valid S.6 notification in force for the relevant fields as a consequence.

Holding and Implications

HOLDING: The writ petition is allowed. The court held that the purported hearing under S.5‑A on 14 January 1969 was not a lawful hearing and that the fresh S.6 declaration issued on 16 January 1969 (published 18 January 1969) was invalid. The court ordered costs (counsel's fee Rs. 200).

Implications:

The direct effect is that the fresh S.6 declaration dated 16 January 1969 was invalid and, as the court stated, there was consequently no valid S.6 notification in respect of the specified field numbers at the time of the judgment.
The judgment emphasises that rescission of a Gazette notification takes effect from the date of its publication in the Official Gazette; an earlier date shown on the instrument cannot be treated as the operative date so as to defeat the statutory right of the person affected to be informed and heard under S.5‑A.
The decision reinforces that S.5‑A provides mandatory procedural protections (an opportunity to be heard) and that compliance cannot be circumvented by informal or retrospective steps; the procedure of rescinding a notification must itself be followed (publication under S.21/Official Gazette).
The court distinguished Munshi Lal v. Delhi Administration and did not treat this decision as controlling; the judgment did not purport to create a broad new legal principle beyond applying existing rules on Gazette publication and mandatory S.5‑A compliance to the facts of the case.

Costs awarded: Counsel's fee Rs. 200. Writ petition allowed.

Show all summary ...

Avadh Behari Rohatgi, J. (Oral):— On April 9, 1964, the respondent Union of India issued a notification under S. 4 of the Land Acquisition Act (the Act) in respect of the petitioners' lands situated in Malikpur Chhawani, Delhi, admeasuring 194 bighas — 19 biswas comprising field Nos. 351, 352, 353, 354, 355, 356, 357, 358 and 359. On May 15, 1964, the petitioners filed objections under S. 5-A of the Act. Without hearing the petitioners on their objections the Government issued a notification under S. 6 on November 30, 1964.

2. Aggrieved by this action of the Government the petitioners brought a writ petition on January 30, 1968 (C.W, No. 123 of 1968). Their main complaint in that case was that no notification under S. 6 of the Act could be issued without hearing them on their objections as required by the mandatory provisions of S. 5-A of the Act. The Government realised its mistake. Accordingly, on December 9, 1968, the Government made an application to the court (CM 2522-J of 1968). This application was styled as one under s. 151, Code of Civil Procedure. In this application it was conceded that “no notice was issued to the petitioners for hearing of those objections and the mandatory provisions of S. 5-A of the Land Acquisition Act have not been complied with.” And that “the acquisition proceedings subsequent to the issue of S. 4 notification may be quashed. Since there is no defect in the notification dated April 9, 1964 under s. 4 of the Land Acquisition Act, the same may be kept intact.”

3. This application came up for hearing before V.S Deshpaade, J. on January 10, 1969. He passed the following order:

“Heard. The respondents can give a hearing to the petitioners under section 5-A of the Land Acquisition Act, without waiting for the orders of the Court solicited by the application. In the meantime the respondents may file a return within a week, so that the case may be heard soon thereafter.”

4. On the very next day, that is, January 11, 1969, the Land Acquisition Collector issued a notice to the petitioners requiring them to appear before him on January 14, 1969. This is what the notice said:

“You are hereby informed that the objections received in respect of acquisition of land for the above purpose will be heard on 14-1-1969 at 10 A.M You may, therefore, attend this office at the appointed time and date.”

5. Now the case of the Government is that the three petitioners intentionally avoided the service of notice and therefore notice was affixed on their last known residence on January 11, 1969 itself.

6. On January 14, 1969, no one appeared on behalf of the petitioners before the Collector. He submitted his report on January 14, 1969. He recommended that the objections of the petitioners dated May 15, 1964 may be dismissed. The report of the Collector, it is said, was placed before the Lt. Governor through Mr. R.C Mathur.

7. On January 15, 1969, a notification dated January 11, 1969, was published in the Official Gazette Extraordinary Part IV. It was captioned as a ‘corrigenda’. There it was said that the petitioners' lands measuring 117 bighas — 3 biswas out of the total area of 194 bighas — 19 biswas and bearing field Nos. 354, 355, 357, 358 and 359 are “hereby deleted”. The result of this notification was that the original notification dated November 30, 1964, under s. 6 stood cancelled in respect of the field numbers specified in the notification.

8. On January 16, 1969, a fresh declaration was made under s. 6 comprising these very field numbers, namely, 354, 355, 357, 358 and 359 measuring 117 bighas — 3 biswas of the petitioners' lands. This notification was actually published in the official gazette on January 18, 1969. The petitioner brought the present writ petition under Art. 226 and 227 of the Constitution on February 22, 1969, challenging the second declaration dated January 16, 1969 published on January 18, 1969. After they had brought the present writ petition they moved the court for the withdrawal of their earlier writ petition CW 123 of 1968. That petition was dismissed as withdrawn on April 9, 1969.

9. Now the point of law for decision is this: Can the Government issue a notice for the hearing of the petitioners' objections under s. 5-A which they had filed on May 15, 1964 without informing them that the Government had decided to cancel the notification under s. 6 dated November 30, 1964 ? Mr. V.P Nanda on behalf of the Government submits that it was open to the Government to cancel the notification dated November 30, 1964 under s. 6 on January 11, 1969 and to issue a notice on that very day to the petitioners calling upon them to appear on January 14, 1969 for the hearing of the objections. He relies on the fact that the gazette notification though published on January 15, 1969 is dated January 11, 1969. It is said I that this shows that on January 11, 1969 itself the gazette notification of November 30, 1964 under s. 6 of the Act stood cancelled and therefore between January 11, 1969 and January 20, 1969 it was open to the Government to do both the things — hear the petitioners on their objections under s. 5-A as well as issue a fresh declaration under s. 6 of the Act.

10. In this connection January 20, 1969, is a significant date. Under the Land Acquisition (Amendment and Validation) Act 1967, the Government had at its disposal a period of 2 years within which to issue a fresh notification under s. 6. That period began with the ordinance which was promulgated on January 20, 1967 and ended on January 20, 1969. This explains the undue haste and the anxiety of the Government to do everything within the short time at its disposal. Between January 11 and January 20 there were not many days. Therefore, on January 11, 1969, the notification under s. 6 was cancelled and notice for hearing of objections under s. 5-A was issued.

11. In my opinion, these proceedings are clearly invalid. The reason is plain. It is true that the notification under s. 6 was cancelled. But that notification was published in the gazette on January 15, 1969. Till then the petitioners did not know that their lands had been de-notified. Until they were so informed they were not supposed to appear before the Land Acquisition Collector, assuming that they were duly served by affixation of notice at their residence as has been contended. Whoever has heard of a hearing after the notification under s. 6 ? “Is it a snare or a delusion” one would ask oneself in an intriguing situation such as this.

12. The notification cancelling S. 6 declaration must appear first in the gazette. Then the Government can give an opportunity to the petitioners. This ought to have been the right order of things and the correct sequence of time.

13. Mr. Nanda says that notification under s. 6 of November 30, 1964, was cancelled on January 11, 1969 and this is the point of time when the land stood released from the Government notification made in 1964. I cannot accept this submission. The petitioners came to know of the cancellation of the notification under s. 6 dated November 30, 1964 only after its publication in the gazette on January 15, 1969. The conclusion therefore is that the hearing said to have been given under s. 5-A was no hearing in the eye of law. It must therefore necessarily follow that the fresh notification issued on January 16, 1969 under s. 6 was invalid. The fact remains that there is no notification today under s. 6 which can be said to be valid.

14. S. 6 (2) of the Act requires that every declaration under that section shall be published in the official gazette. Now the Government wanted to rescind its earlier notification dated November 30, 1964 because of its invalidity. They could do it in the like manner, namely, by issuing a notification in the official gazette. Clearly they had the power. The power to issue a notification includes the power to rescind it. S. 21 of the General Clauses Act provides it in explicit terms. But this power does not include a power to rescind the notification with retrospective effect. S. 21 does not say expressly or by necessary implication that the power can be exercised with retrospective effect.

15. The dates are important. The Government in this case issued the notification dated January 11, 1969 which was published in the gazette on January 15, 1969 under the powers conferred by S. 21 General Clauses Act. But that notification for obvious reasons cannot have effect from January 11, 1969. It will have effect from January 15, 1969, the date of its publication. (See State of M.P v. Vishnu Pershad Sharma: AIR 1966 Supreme Court 1593) (1). Cancellation was in recognition of the invalidity of the earlier notification. But cancellation came to the knowledge of the petitioners when it was published in the gazette and not before that.

16. Take a case of amendment of a rule. The amendment will have effect from the date of publication and not from any other date. The same is the case here.

17. The publication in the gazette was made on January 15, 1969. The hearing for objections under s. 5-A was fixed by the Collector on January 14, 1969. This has resulted in plain injustice. The whole proceeding smacks of a pretence and an idle formality. The object of the legislature in enacting S. 5-A is to give to the owner of the land proposed to be acquired an opportunity to put forward their objections to the proposed acquisition. Provisions of S. 5-A are mandatory and a declaration made under s. 6 without compliance with the provisions of S. 5-A is invalid. I would in the circumstances of this case hold that there was a denial of opportunity and non-compliance of the provisions of S. 5-A. This conclusion appears to me inescapable.

18. Mr. Nanda submits that it was not necessary for the Government to communicate to the petitioners the cancellation of the earlier notification under s. 6 as it was made known to them by the application dated December 9, 1968 moved in the earlier writ proceedings and the order dated January 10, 1969 shows it. I do not agree. There is nothing in the application dated December 9, 1968 and the order of V.S Deshpande, J. dated January 10, 1969 which would show that the Government had in their contemplation the cancellation of the earlier notification and the issuance of a fresh notification under s. 6 of the Act. The application only conceded the claim of the petitioners. But it gave no idea, not even a hint of what the Government was contemplating in future. The order of Deshpande, J. said nothing on this point. He merely allowed the Government to give an opportunity to the petitioners under s. 5-A if they so wished.

19. The procedure for cancellation of the declaration under s. 6 is governed by S. 21 of the General Clauses Act, as I have said. That procedure is obligatory. The application and the order of Deshpande, J. did not dispense with that procedure.

20. Counsel referred me to a decision of Prakash Narain, J. in Munshi Lal v. Delhi Administration, (C.W No. 433-D of 1961 decided on December 10, 1970) (2). That was a case under s. 48 of the Act. There Mr. Dharam Vira, the then Chief Commissioner made an order under s. 48 releasing the petitioner's land. His successor Mr. Vishwanathan decided not to release the land. The learned judge held that an order having once been made under s. 48 of the Act and communicated to the petitioner it was not open to the successive Chief Commissioner to revise or reverse that decision and to revive the acquisition proceedings. That case in my opinion has nothing to do with the point involved in the present writ petition the decision of which turns on the validity of the cancellation of the notification under s. 6 of the Act.

21. For these reasons I would allow the writ petition with costs. Counsel's fee Rs. 200.

Writ petition allowed.