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Land Acquisition Act = whether the officers of the Union Territory of Chandigarh other than the Administrator could issue notifications under Sections 4(1) and 6(1) of the 1894 Act, = Notification dated 1.10.2002 cannot be saved at this belated stage and the Competent Authority cannot issue declaration under Section 6(1) of the Act after 11 years of the issue of notification under Section 4(1). – In the result, the appeals are allowed, the impugned order is set aside and Notifications dated 1.10.2002 and 29.9.2003 are quashed insofar as the same relate to the lands of the appellants. The parties are left to bear their own costs.

   reported in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40587     

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5885 OF 2013
(Arising out of SLP(C) No. 27221 of 2011)

Gurbinder Kaur Brar and another …Appellants

versus
Union of India and others
…Respondents
With
CIVIL APPEAL NO.5884 OF 2013
(Arising out of SLP(C) No. 25387 of 2011)
Sardar Milkha Singh …Appellant
versus
Union of India and others
…Respondents

J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.

2. These appeals are directed against order dated 18.3.2011 passed by
the Division Bench of the Punjab and Haryana High Court whereby the writ
petitions filed by the appellants for quashing the acquisition of their
land were dismissed along with a batch of other petitions.

3. At the outset, we may mention that the impugned order was set aside
by this Court in Surinder Singh Brar and others v. Union of India and
others (2013) 1 SCC 403 and Notifications dated 26.6.2006, 2.8.2006 and
28.2.2007 issued by the Chandigarh Administration under Sections 4(1) and
6(1) of the Land Acquisition Act, 1894 (for short, ‘the 1894 Act’) for the
acquisition of land for Phase-III of Chandigarh Technology Park were
quashed.

4. By Notification dated 1.10.2002 issued under Section 4(1) of the 1894
Act, the Chandigarh Administration proposed the acquisition of 71.96 acres
land for various purposes including the Chandigarh Technology Park. The
appellants filed detailed objections under Section 5A(1) because their land
were also included in Notification dated 1.10.2002. After making a show of
hearing the objectors, the Land Acquisition Officer, Union Territory,
Chandigarh submitted report with the recommendation that the land notified
on 1.10.2002 may be acquired. The report of the Land Acquisition Officer
was accepted by the officers of the Chandigarh Administration and
declaration dated 29.9.2003 was issued under Section 6(1) of the 1894 Act
for 56.76 acres land.

5. The appellants challenged the acquisition of their land in Civil Writ
Petition No.8545/2004 titled Gurbinder Kaur Brar and another v. Union of
India and others and Civil Writ Petition No.12779/2004 titled Milkha Singh
v. Union of India and others.

6. Similar petitions were filed by other landowners whose land had been
acquired for Phases-II and III of Chandigarh Technology Park. All the writ
petitions were dismissed by the Division Bench of the High Court by the
impugned order.

7. In Surinder Singh Brar and others v. Union of India and others
(supra), this Court reversed the order of the High Court and quashed the
acquisition of land for Phase-III of Chandigarh Technology Park and various
other purposes specified in Notifications dated 26.6.2006, 2.8.2006 and
28.2.2007. While dealing with the question whether the officers of the
Union Territory of Chandigarh other than the Administrator could issue
notifications under Sections 4(1) and 6(1) of the 1894 Act, this Court
referred to Article 239 of the Constitution (unamended and amended),
Notifications dated 8.10.1968, 1.1.1970 and 14.8.1989 issued under Clause
(1) of that Article, Notification dated 25.2.1988 issued by the
Administrator, Union Territory of Chandigarh under Section 3(1) of the
Chandigarh (Delegation of Powers) Act, 1987 (for short, ‘the 1987 Act’) and
observed:

“The unamended Article 239 envisaged administration of the
States specified in Part C of the First Schedule of the
Constitution by the President through a Chief Commissioner or a
Lieutenant Governor to be appointed by him or through the
Government of a neighbouring State. This was subject to other
provisions of Part VIII of the Constitution. As against this,
amended Article 239 lays down that subject to any law enacted by
Parliament every Union Territory shall be administered by the
President acting through an Administrator appointed by him with
such designation as he may specify. In terms of clause (2) of
Article 239 (amended), the President can appoint the Governor of
a State as an Administrator of an adjoining Union territory and
on his appointment, the Governor is required to exercise his
function as an Administrator independently of his Council of
Ministers. The difference in the language of the unamended and
amended Article 239 makes it clear that prior to 1-11-1956, the
President could administer Part C State through a Chief
Commissioner or a Lieutenant Governor, but, after the amendment,
every Union Territory is required to be administered by the
President through an Administrator appointed by him with such
designation as he may specify. In terms of clause (2) of Article
239 (amended), the President is empowered to appoint the
Governor of State as the Administrator to an adjoining Union
Territory and once appointed, the Governor, in his capacity as
Administrator, has to act independently of the Council of
Ministers of the State of which he is the Governor.

A reading of the Notification issued on 1-11-1966 (set out in
para 42) shows that in exercise of the power vested in him under
Article 239(1), the President directed that the Administrator
shall exercise the power and discharge the functions of the
State Government under the laws which were in force immediately
before formation of the Union Territory of Chandigarh. This was
subject to the President’s own control and until further orders.
By another notification issued on the same day, the President
directed that all orders and other instruments made and executed
in the name of the Chief Commissioner of Union Territory of
Chandigarh shall be authenticated by the signatures of the
specified officers. These notifications clearly brought out the
distinction between the position of the Administrator and the
Chief Commissioner insofar as the Union Territory of Chandigarh
was concerned. Subsequently, the President appointed the
Governor of Punjab as Administrator of the Union Territory of
Chandigarh and separate notifications were issued for
appointment of Adviser to the Administrator. The officers
appointed as Adviser are invariably members of the Indian
Administrative Service.

After about 2 years of the issuance of the first notification
under Article 239(1) of the Constitution, by which the powers
and functions exercisable by the State Government under various
laws were generally entrusted to the Administrator, Notification
dated 8-10-1968 (set out in para 44) was issued and the earlier
notification was modified insofar as it related to the exercise
of powers and functions by the Administrator under the Act and
the President directed that subject to his control and until
further orders, the powers and functions of “the appropriate
Government” shall also be exercised and discharged by the
Administrator. The Notification dated 8-10-1968 was superseded
by the Notification dated 1-1-1970 (set out in para 45) and the
President directed that subject to his control and until further
orders, the powers and functions of “the appropriate Government”
shall also be exercised and discharged by the Administrator of
every Union territory whether known as the Administrator, the
Chief Commissioner or the Lieutenant Governor. The last
Notification in the series was issued on 14-8-1989 (set out in
para 46) superseding all previous notifications. The language of
that notification is identical to the language of the
Notification dated 1-1-1970.

There is marked distinction in the language of the notifications
issued under Article 239(1) of the Constitution. By the
Notification dated 1-11-1966 (set out in para 42), the President
generally delegated the powers and functions of the State
Government under various laws in force immediately before 1-11-
1966 to the Administrator. By all other notifications, the power
exercisable by “the appropriate Government” under the Act and
the Land Acquisition (Companies) Rules, 1963 were delegated to
the Administrator. It is not too difficult to fathom the reasons
for this departure from Notification dated 1-11-1966. The
Council of Ministers whose advice constitutes the foundation of
the decision taken by the President was very much conscious of
the fact that compulsory acquisition of land, though sanctioned
by the provisions of the Act not only impacts lives and
livelihood of the farmers and other small landholders, but also
adversely affects the agriculture, environment and ecology of
the area. Therefore, with a view to avoid any possibility of
misuse of power by the executive authorities, it has been
repeatedly ordained that powers and functions vested in “the
appropriate Government” under the Act and the 1963 Rules shall
be exercised only by the Administrator. The use of the
expression “shall also be exercised and discharged” in the
Notifications dated 8-10-1968, 1-1-1970 and 14-8-1989 is a clear
pointer in this direction. The seriousness with which the
Central Government has viewed such type of acquisition is also
reflected from the decision taken by the Home Minister on 23-9-
2010 (set out in para 35) in the context of the report of the
Special Auditor and the one-man committee. Thus, the acquisition
of land for and on behalf of the Union Territories must be
sanctioned by the Administrator of the particular Union
territory and no other officer is competent to exercise the
power vested in “the appropriate Government” under the Act and
the Rules framed thereunder.

We may now advert to the Notification dated 25-2-1988 (set out
in para 47) issued under Section 3(1) of the 1987 Act, vide
which the Administrator directed that any power, authority or
jurisdiction or any duty which he could exercise or discharge by
or under the provisions of any law, rules or regulations as
applicable to the Union Territory of Chandigarh shall be
exercised or discharged by the Adviser except in cases or class
of cases enumerated in the Schedule. There is nothing in the
language of Section 3(1) of the 1987 Act from which it can be
inferred that the Administrator can delegate the power
exercisable by “the appropriate Government” under the Act which
was specifically entrusted to him by the President under Article
239(1) of the Constitution. Therefore, the Notification dated 25-
2-1988 cannot be relied upon for contending that the
Administrator had delegated the power of “the appropriate
Government” to the Adviser.”

 

The Court then considered the question whether the reports submitted by the
Land Acquisition Officer under Section 5A(2) were vitiated due to non-
consideration of the objections filed by the landowners and answered the
same in affirmative by recording the following observations:

“A cursory reading of the reports of the LAO may give an
impression that he had applied mind to the objections filed
under Section 5A(1) and assigned reasons for not entertaining
the same, but a careful analysis thereof leaves no doubt that
the officer concerned had not at all applied mind to the
objections of the landowners and merely created a facade of
doing so. In the opening paragraph under the heading
“Observations”, the LAO recorded that he had seen the revenue
records and conducted spot inspection. He then reproduced the
Statement of Objects and Reasons contained in the Bill which led
to the enactment of the Punjab New Capital (Periphery) Control
Act, 1952 and proceed to extract some portion of reply dated
31.7.2006 sent by the Administrator to Surinder Singh Brar.

In the context of the statement contained in the first line of
the paragraph titled “Observations”, we repeatedly asked Shri
Sudhir Walia, learned counsel assisting Dr. Rajiv Dhawan to show
as to when the LAO had summoned the revenue records and when he
had conducted spot inspection but the learned counsel could not
produce any document to substantiate the statement contained in
the two reports of the LAO. This leads to an inference that, in
both the reports, the LAO had made a misleading and false
statement about his having seen the revenue records and
conducted spot inspection. That apart, the reports do not
contain any iota of consideration of the objections filed by the
landowners. Mere reproduction of the substance of the objections
cannot be equated with objective consideration thereof in the
light of the submission made by the objectors during the course
of hearing. Thus, the violation of the mandate of Section 5A(2)
is writ large on the face of the reports prepared by the LAO.

The reason why the LAO did not apply his mind to the objections
filed by the appellants and other landowners is obvious. He was
a minion in the hierarchy of the administration of the Union
Territory of Chandigarh and could not have even thought of
making recommendations contrary to what was contained in the
letter sent by the Administrator to Surinder Singh Brar. If he
had shown the courage of acting independently and made
recommendation against the acquisition of land, he would have
surely been shifted from that post and his career would have
been jeopardized. In the system of governance which we have
today, junior officers in the administration cannot even think
of, what to say of, acting against the wishes/dictates of their
superiors. One who violates this unwritten code of conduct does
so at his own peril and is described as a foolhardy. Even those
constituting higher strata of services follow the path of least
resistance and find it most convenient to tow the line of their
superiors. Therefore, the LAO cannot be blamed for having acted
as an obedient subordinate of the superior authorities,
including the Administrator. However, that cannot be a
legitimate ground to approve the reports prepared by him without
even a semblance of consideration of the objections filed by the
appellants and other landowners and we have no hesitation to
hold that the LAO failed to discharge the statutory duty cast
upon him to prepare a report after objectively considering the
objections filed under Section 5A(1) and submissions made by the
objectors during the course of personal hearing.”

 

The Court also analysed the provisions of Sections 4(1), 5A, 6(1) of the
1894 Act, referred to several judgments and observed:

“What needs to be emphasised is that hearing required to be
given under Section 5-A(2) to a person who is sought to be
deprived of his land and who has filed objections under Section
5-A(1) must be effective and not an empty formality. The
Collector who is enjoined with the task of hearing the objectors
has the freedom of making further enquiry as he may think
necessary. In either eventuality, he has to make report in
respect of the land notified under Section 4(1) or make
different reports in respect of different parcels of such land
to the appropriate Government containing his recommendations on
the objections and submit the same to the appropriate Government
along with the record of proceedings held by him for the
latter’s decision. The appropriate Government is obliged to
consider the report, if any, made under Section 5-A(2) and then
record its satisfaction that the particular land is needed for a
public purpose. This exercise culminates into making a
declaration that the land is needed for a public purpose and the
declaration is to be signed by a Secretary to the Government or
some other officer duly authorised to certify its orders. The
formation of opinion on the issue of need of land for a public
purpose and suitability thereof is sine qua non for issue of a
declaration under Section 6(1). Any violation of the substantive
right of the landowners and/or other interested persons to file
objections or denial of opportunity of personal hearing to the
objector(s) vitiates the recommendations made by the Collector
and the decision taken by the appropriate Government on such
recommendations. The recommendations made by the Collector
without duly considering the objections filed under Section 5-
A(1) and submissions made at the hearing given under Section 5-
A(2) or failure of the appropriate Government to take objective
decision on such objections in the light of the recommendations
made by the Collector will denude the decision of the
appropriate Government of statutory finality. To put it
differently, the satisfaction recorded by the appropriate
Government that the particular land is needed for a public
purpose and the declaration made under Section 6(1) will be
devoid of legal sanctity if statutorily engrafted procedural
safeguards are not adhered to by the authorities concerned or
there is violation of the principles of natural justice. The
cases before us are illustrative of flagrant violation of the
mandate of Sections 5-A(2) and 6(1).”

 

8. Shri Sudhir Walia, learned counsel for the Chandigarh Administration
made valiant effort to convince us that the view taken in Surinder Singh
Brar and others v. Union of India and others (supra) on the interpretation
of the provisions of the 1987 Act needs reconsideration but we do not find
any valid ground to accept the submission of the learned counsel. In our
view, Section 3(1) of the 1987 Act does not empower the Administrator to
delegate the functions of the “appropriate government” to any officer or
authority specified in the notification issued under that section because
the Presidential notification does not provide for such delegation.

9. We also agree with the learned counsel for the appellants that the
report of the Land Acquisition Officer was vitiated due to total non-
application of mind by the concerned officer to large number of substantive
objections raised by the appellants under Section 5A(1). He mechanically
rejected the objections and senior officers of the Chandigarh
Administration accepted the report of the Land Acquisition Officer despite
the fact that the same had been prepared in violation of Section 5A(2).

10. Shri Walia made a last ditched effort to save Notification dated
1.10.2002 and for this purpose he relied upon order dated 27.2.2013 passed
by the coordinate Bench in Civil Appeal No. 1964/2013 titled Lajja Ram and
others v. Union Territory, Chandigarh and others. We have carefully gone
through that order and are of the view that Notification dated 1.10.2002
cannot be saved at this belated stage and the Competent Authority cannot
issue declaration under Section 6(1) of the Act after 11 years of the issue
of notification under Section 4(1). We may add that in view of the law
laid down by the Constitution Bench in Padma Sundara Rao v. State of Tamil
Nadu (2002) 3 SCC 533, which was followed in a large number of judgments,
the Chandigarh Administration cannot now issue a declaration under Section
6(1) after rectifying the illegalities committed in the preparation of
report under Section 5A(2) and issue of the earlier declaration.

11. In the result, the appeals are allowed, the impugned order is set
aside and Notifications dated 1.10.2002 and 29.9.2003 are quashed insofar
as the same relate to the lands of the appellants. The parties are left to
bear their own costs.
……………………………………J.
(G.S. SINGHVI)

 
……………………………………J.
(V. GOPALA GOWDA)
New Delhi;
July 22, 2013.

 

 
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11

 

 

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