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B.K. Abdul Azeez v. The State Of Mysore And Anr.
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner, a resident of Gubbi Town, is the owner of Section No. 1 (15 guntas) and Section No. 14 (3½ guntas). Respondent 1 is the State Government and respondent 2 is the Gubbi Town Municipality. The Municipality initiated acquisition proceedings in respect of these lands. The Deputy Commissioner had permitted the petitioner to convert Section No. 14 into sites and, upon the petitioner's application, an ad interim stay of acquisition proceedings was granted. Subsequently the State Government sanctioned acquisition of Section No. 1 on 20-10-1953, considered the petitioner's representation and on 9-6-1954 vacated the interim stay and dismissed the petitioner's application seeking dropping of acquisition proceedings. The petitioner filed this writ petition under Article 226 seeking quashing of the ex parte order of dismissal by the State Government and restoration of the lands ordered to be acquired.
Legal Issues Presented
- Whether the State Government's dismissal of the petitioner's application without giving an oral hearing to his counsel violated the principles of natural justice.
- Whether the acquisition proceedings were vitiated because the preliminary notice under Section 4(1) and the declaration under Section 6 of the Land Acquisition Act were published simultaneously (in the same issue of the official gazette dated 3-13-53), contrary to the requirements of Section 17(4) of the Land Acquisition Act.
- Whether the provisions of Sections 4, 5-A and 17(4) of the Land Acquisition Act were duly complied with and, if not, whether the acquisition order is invalid.
Arguments of the Parties
Petitioner's Arguments
- The petitioner alleged he was not given a hearing before the State Government dismissed his application and that the procedure adopted contravened principles of natural justice.
- The petitioner contended that the provisions of Sections 4, 5-A and 17(4) of the Land Acquisition Act were not complied with; specifically, the preliminary notice under Section 4(1) and the declaration under Section 6 were published in the same issue of the official gazette (dated 3-13-53), which he argued vitiated the proceedings.
- He sought quashing of the order dismissing his application and restoration of the lands (Sections Nos. 1 and 14 at Gubbi Town) ordered to be acquired.
Respondent (State Government)'s Arguments
- The counter-affidavit alleged the Deputy Commissioner's order was set aside by higher authorities and that the Government sanctioned acquisition of Section No. 1 on 20-10-1953.
- The Government acknowledged that an ad interim stay had been issued on the petitioner's application but stated that after considering the petitioner's representation they dismissed the application and vacated the stay on 9-6-1954.
- It was denied that the petitioner's advocate was promised a full hearing and it was contended there was no necessity to give an oral hearing because the petitioner was not entitled to one in the circumstances.
- The Government maintained that the provisions of the Land Acquisition Act were not contravened, that Section 17(4) directed that Section 5-A need not apply to this acquisition (thus no inquiry under Section 5-A was necessary), and that the acquisition was bona fide and for a public purpose; hence the petition should be dismissed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mahabir Motor Co., Bhagalpur v. State of Bihar | Held that it is not essential that the State Government give a personal hearing or a hearing through a lawyer before disposing of an application; it is sufficient that the party is given an opportunity to put forth his case or to show cause against the proposed order. Whether a personal hearing is required depends on facts and circumstances. | The court relied on this precedent to support the view that the absence of an oral hearing to the petitioner's counsel did not, by itself, vitiate the Government's order because the petitioner's representations had been considered and an earlier full hearing had been afforded at the stage when the ad interim stay was granted. |
| In re Shanmuga Mudaliar | Affirmed the principle that quasi-judicial tribunals are required to give sufficient opportunity to persons seeking relief, and that the absence of a personal hearing does not necessarily invalidate a decision if objections were presented in writing and considered. | The court applied this authority to conclude that dismissal without a subsequent oral hearing was not invalid where the petitioner's grounds had been set out in his petition and were considered by the Government. |
Court's Reasoning and Analysis
The court analyzed the petitioner's two principal grounds of attack in sequence.
-
On the alleged denial of an oral hearing and breach of natural justice:
- The court noted the procedural history: Government sanctioned acquisition on 20-10-1953; an ad interim stay had been granted on the petitioner's application; after considering the petitioner's representation the Government dismissed the application and vacated the stay on 9-6-1954.
- The court found it incorrect to say the petitioner's counsel had no hearing at all: counsel had been heard in full at the stage when the stay was granted.
- The court observed that quasi-judicial tribunals must give a "sufficient opportunity" to parties, but that a personal/oral hearing is not invariably required. It held that the Government was not obliged to give a fresh oral hearing before disposing of the application where the representations had already been presented and considered.
- The court relied on the cited precedents (Mahabir Motor Co. and In re Shanmuga Mudaliar) to support the position that fulfilling the requirement of an opportunity to put forward objections or show cause suffices, and that whether a personal hearing is necessary depends on the facts.
- On these grounds the court concluded the dismissal without an additional oral hearing did not vitiate the Government's order.
-
On the contention regarding simultaneous publication of the Section 4(1) notification and the Section 6 declaration:
- The court acknowledged the petitioner's correctness in noting that, under the wording of Section 17(4), the declaration under Section 6 must be made after the publication of the notification under Section 4(1); the court emphasized the word "after" in the statute.
- The court nonetheless rejected the contention that simultaneous publication rendered the Government's order illegal or void. It characterized the simultaneous publication as an irregularity that contravenes Section 17(4) but did not consider it a mandatory defect that vitiated the entire acquisition process.
- The court reasoned that the interval envisaged by Section 17(4) was intended for the benefit of the Government (to consider whether there existed a public purpose and whether the land had to be acquired), particularly where Section 17(4) excluded the operation of Section 5-A (i.e., the Legislature took away the right to file objections under Section 5-A in those cases), so the interval could not meaningfully be interpreted as intended to create an opportunity for objections by the party in such cases.
- The court warned that Section 17(4)'s emergent power to exclude Section 5-A is to be used in exceptional cases and should not be converted into a normal measure so as to defeat the object of Section 5-A. Nevertheless, on the facts before it the court treated the simultaneous publication as irregular but not as a ground for invalidating the acquisition on merits.
Holding and Implications
Holding: The writ petition is DISMISSED.
Consequences and implications:
- The petition was dismissed with costs; the court awarded an advocate's fee of Rs. 100/-. This is the direct effect on the parties: the State Government's order dismissing the petitioner's application stands and the acquisition proceedings are not quashed by this petition.
- The court treated the simultaneous publication of the notifications as an irregularity that contravened Section 17(4) but held that on the facts it did not vitiate the entire acquisition proceedings. The opinion did not purport to set a new binding precedent beyond its application of existing authorities on the sufficiency of opportunity and the interpretation of Section 17(4).
1. This is an application filed by the petitioner under Article 226 of the Constitution of India praying for the issue of an appropriate writ, order or direction for quashing the ex parte order of dismissal passed by respondent 1 Government on the application made by him, and for restoration of the lands bearing Section Nos. 1 and 14 at Gubbi Town, which are ordered to be acquired.
2. The facts that have given rise to this petition are briefly as follows:
3. The petitioner is a resident of Gubbi Town and respondent 1 is the State Government, respondent 2 being the Gubbi Town Municipality. The petitioner is the owner of Section No. 1 having an extent of 15 guntas and Section No. 14 having an extent of 3U guntas. Respondent 1 Government started acquisition proceedings in respect of these lands at the instance of respondent 2 Municipality.
At that stage the petitioner, who had been per. mitted by the Deputy Commissioner to convert s. No, 14 into sites, applied for a stay or the proceedings for acquisition and a stay order was passed. But ultimately respondent 1 Government dismissed the application filed by the petitioner for dropping the acquisition proceedings and ordered the same to proceed. It is this order that is impugned in the present petition.
4. The grievance of the petitioner is two-fold: firstly, that he has not been given a hearing before respondent 1 Government dismissed his application and that the procedure adopted Is opposed to principles of natural justice; and secondly, that the provisions of Sections 4, 5(A) and 17(4), Land Acquisition Act, have not been complied with and that, therefore, the order in question is invalid.
5. In the counter-affidavit filed by respondent 1 Government, it is alleged that the Deputy Commissioner's order was set aside by the higher authorities, that the Government sanctioned acquisition of Section No. 1 on 20-10-1953, that on the application of the petitioner an ad interim stay order was issued staying further proceedings of acquisition, that after consideration of the petitioner's representation, they dismissed his application and vacated the stay order on 9-6-1954, that it is not true that the petitioner's advocate was promised a full hearing, that there was also no necessity for doing so inasmuch as he was not entitled to it, that the provisions of Land Acquisition Act have not been contravened, that the State Government under Section 17(4), Land Acquisition Act directed that the provisions of section 5(a) shall not apply to the acquisition of this land, that therefore there was no need for any enquiry under Section 5(A), that the acquisition is bona fide and for a public purpose and that the application has to be dismissed.
6. We see no merit in either of the contentions raised by the petitioner. The first ground of attack is that the petitioner was not given an oral hearing before his petition dated 23-11-1953 to the State Government was dismissed. What happened was this: the State Government sanctioned acquisition of petitioner's land Section No. 1 on 20-10-53 and on the application filed by the petitioner an ad interim stay order was issued staying further proceedings.
After consideration of the petitioner's representation the State Government dismissed the application on 9-6-54 anrt vacated the ad interim stay order. The petitioner's contention is that his counsel was promised a hearing before disposing of his application, that no oral hearing was given as promised, that the order of the State Government is opposed to principles of natural justice and that, therefore, it is liable to be declared null and void.
7. It is not correct to say that the petitioner's counsel was not given any hearing at all. At the stage of stay of the acquisition proceedings the learned counsel was heard in full and a stay order was passed. The grievance of the petitioner that his counsel was given no oral hearing is without any substance. The contention urged on the side of the respondent-Government is that there was no necessity for any such oral hearing being given. We think that the said contention has to be upheld.
In all such cases of quasi-judicial tribunals, what is required is that sufficient opportunity should be given to the parties who approach them for relief. The learned counsel for the petitioner was not able to draw our attention to any provision or case law where it is held that oral hearing must be given in cases of this type. The petitioner had set forth all his grievances in the application filed by him at the time he applied for stay. After considering those representations the State Government passed an order dismissing the same.
What is expected of quasi-judicial tribunals in such matters is laid down in the cases in Mahabir Motor Co., Bhagalpur v. State of Bihar, (A) and In re Shanmuga Mudaliar, (B). In the first case, which was a case under the Motor Vehicles Act, it is held by their Lordships that it is not essential that the State Government should give a personal hearing or a hearing through a lawyer before disposing of an application. In their Lordships' opinion, it is sufficient if the party is given an opportunity to put forth his case or to defend himself or to show cause against the proposed order.
It is further pointed out in the same case that when once this requirement is fulfilled the principles or natural justice cannot be said to have been violated. Whether a personal hearing should be given or not will depend upon the facts and circumstances of each case. In this case, as already observed, the petitioner's objections were considered by the State Government and the order of dismissal was made. The said order cannot be said to be vitiated merely because no oral hearing was given to the petitioner's advocate.
8. In the second case, it is pointed out that all that the quasi-judicial tribunals are expected to do is to give a sufficient opportunity to the persons who approach them for relief. In that case also the petitioner has stated all the grounds of objection to the order of the Revenue Divisional Officer in his petition to the Board of Revenue. Neither the petitioner nor his counsel was given a personal hearing and the Board dismissed that application.
The contention that the order was invalid because no oral hearing was given and that the principles of natural justice had been violated was negatived in that case. Under these circumstances, we are of opinion that the order of dismissal passed by respondent 1 Government without giving an oral hearing to the petitioner's counsel is not vitiated.
9. The next grievance of the petitioner is that the preliminary notice under Section 4(1), Land Acquisition Act and the declaration under Section 6 of the same Act have both been published in the same issue of the official gazette dated 3-13-53 and that this is an illegality which vitiates the entire proceedings.
We have examined the relevant provisions and we agree with the contention of the learned counsel for the petitioner that the declaration under Section 6 , of the Act should have been published after the notification under Section 4(1), Land Acquisition Act, had been published. But we are not in agreement with the learned counsel for the petitioner that as a result of the simultaneous publication, the order of Government should be held illegal or void.
10. Section 17(4), Land Acquisition Act, runs thus:--
"In the case any land to which in the opinion of the Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the Government may direct that the provisions of section 5a shall not apply, and if it does so direct, a declaration may be made under Section 6, in respect of the land at any time after the publication of the notification under Section 4, sub-Section (1)."
The wording of the section is quite clear and stress must be laid on the word "after" appearing after the words "at any time" and before the words "publication of the notification", etc., in Section 17(4) & there can be no doubt that the declaration under Section 6 has to be made after the publication of the notification under Section 4(1).
It was further contended by the learned counsel for the petitioner that the Legislature provided for this interval between the publication of the modification under Section 4(1) and the declaration under Section 6 for the benefit of the party so that he might file objections to the acquisition during that interval, it is in this contention that we see no substance. When the Legislature took away the right of the party to file objections under Section 5-A by means of Section 17(4), there is no meaning or substance in saying that the Legislature intended to give an opportunity to the party by providing an interval between the publication of the notice under Section 4(1) and the declaration under Section 6, Land Acquisition Act. That could not have been the intention of the Legislature.
It appears to us that this gap was and is intended for the benefit of the Government. After the notification under Section 4(1) the Legislature must have intended to give some time to the State Government to consider if there existed a public purpose and if the land had really to be acquired. No doubt, the simultaneous publication of the notifica-tion under Section 4(1) and the declaration under Section 6 is not in order and the same is open to objection inasmuch as it contravenes the provisions of Section 17(4).
But what we have to consider is whether it Is an illegality vitiating the entire proceedings or only an irregularity, considering the context in which Section 17(4) comes in and the wording of that section, we do not agree that the provisions of that section are mandatory in the sense that a contravention of the same would vitiate the proceedings already taken. At the most, it is an irregularity not affecting the merits of the "acquisition inasmuch as it has not prejudiced the petitioner.
11. We are told that the provisions of Section 17(4) are made applicable to almost alt the acquisition proceedings undertaken by the State Government. We do not know how far this is true. Anyway, it has to be pointed out that the provision contained in Section 17(4) that the Government may exclude the operation of Section 5-A in particular cases referred to therein is an emergent measure to be retorted to in exceptional cases and such an emergent power should not be converted into a normal measure so as to defeat the very object with which Section 5-A has been enacted. We think that the petition has to fail,
12. In the result, this writ petition fails and the same stands dismissed with costs, Advocate's fee Rs. 100/-.
13. Petition dismissed.
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